Fixing Copyright: Is Copyright A Part Of Free Market Capitalism?

from the not-even-close dept

Continuing our series of posts concerning the Republican Study Committee report on the problems of the copyright system and how to fix them (which it quickly retracted under industry pressure), today we're going to explore the second "myth" that author Derek Khanna helped debunk: that "copyright is free market capitalism at work." We've already covered the first myth, about the purpose of copyright, as well as responded to various responses to the report by copyright maximalists.

That response feeds nicely into this post, because the whole argument that copyright is "free market capitalism" depends almost entirely on the key claim of maximalists: that copyright is property, full stop. However, as we noted in our response, copyright has both property-like attributes and many non-property-like attributes. And it's when you look at the actual market that you have to recognize that those non-property-like attributes start to stand out. The only way you can argue that copyright is free market capitalism at work is to flat out ignore the ways in which copyright is unlike property.

To hopefully demonstrate this clearly, we'll start out with two examples of other "markets" that show that just because you set up a property right and create a market, that doesn't mean it's a free market. First up: air. Yes, that stuff we all breathe. It's clearly a valuable good. Extremely valuable. But... if we're to believe the maximalist view, because we don't directly pay for the air we breathe (even if we pay for it indirectly) it must be "valueless" or "worthless." So, clearly, the best way to deal with this is to set up a monopoly privilege in air -- such that you need to buy a "license" to breathe air that isn't yours.

Think of the massive industry that would be built up around this. It would really be a tremendously large industry, because people would be willing to pay every last penny to make sure that they had air to breathe. Talk about having inelastic demand! But, of course, the "problem" is that we have (mostly) abundant supply. Yet, putting monopoly rights on it would solve that problem right away, restricting supply through artificial monopolies, and allowing owners to charge. Boy, would that create a market! Of course, it would be complex, so perhaps we could "ease" things along by creating an Airrights Royalty Board to set some compulsory rates to make the whole market function "better." Think of how we could juice the economy there! Every single person needs air, so they would pay. Clearly, overnight, it would boost the economy.

Of course, this is silly. Everyone knows that it's silly, but as you listen to the arguments for copyright as being a free market, recognize that it's no different than the scenario above. The problem is basically a restating of Bastiat's broken window parable. The government can introduce artificial inefficiencies into the market, but that doesn't mean that it's part of a free market. A free market is one in which resources are being allocated more efficiently. But a market in which you have entities choosing to introduce inefficiencies on purpose to create new markets isn't a "free market" at all. It just creates an inefficient market that draws money to that market and away from more efficient purposes and allocation. You can, if you want, argue that this government / market interference is good for society or a particular group -- but you cannot argue that it's "free market capitalism" because it's not.

The second example is similar. It's the idea that Ed Felten came up with a few years back, known as the Pizzaright Principle, which stated simply is:

Pizzaright – the exclusive right to sell pizza – is a new kind of intellectual property right. Pizzaright law, if adopted, would make it illegal to make or serve a pizza without a license from the pizzaright owner.

Creating a pizzaright would be terrible policy, of course. We’re much better off letting the market decide who can make and sell pizza.

The Pizzaright Principle says that if you make an argument for expanding copyright or creating new kinds of intellectual property rights, and if your argument serves equally well as an argument for pizzaright, then your argument is defective. It proves too much. Whatever your argument is, it had better rest on some difference between pizzaright and the exclusive right you want to create.

This is the same basic concept again. You can create new artificial markets by inserting property-like rights anywhere you want. But most people in other situations recognize that's not free market capitalism at all, but market distorting interference. So, as you listen to those who argue that copyright is free market capitalism, apply these tests. Does it apply equally to airrights and pizzarights? If so, the argument is defective. To date, I have yet to hear an argument for copyright being free market capitalism that doesn't equally apply to airrights or pizzarights.

Of course, there are other important ways in which copyrights are actually against the free market -- and, again, it's here where recognizing the key differences between copyright and scarce property come into play. As Rick Falkvinge recently reminded us, copyright is something that actually limits property rights rather than creates new ones:

Which brings us to the third notable item: “the exclusive right”. This is what we would refer to colloquially as a “monopoly”. The copyright industry has been tenacious in trying to portray the copyright monopoly as “property”, when in reality, the exclusive rights created are limitations of property rights (it prohibits me from storing the bitpatterns of my choosing on my own hardware).

This is a key point that often gets lost in all of this. The only thing that copyright does is limit others' actual property rights. Now, again, this doesn't mean you can't make an argument that this limitation is valuable and important. But it's a simple fact that all the "exclusive right" copyright provides to someone is a way to try to stop people from actually exercising their own property rights over products they own.

In the end, it's fine to argue that copyright has important benefits and value -- but that's not the same thing as arguing that it's a part of free market capitalism. Because it's not.

Re:

Re:

Copyright stifles competition and competition is vital to a free market so, no, copyright is not part of free market capitalism.

Absolutely. Copyright is simply crony capitalism, where those who come first or scream the loudest get special favors while everyone else is left to deal with unfair competition it creates.

A monopoly in capitalism is broken competition...anyone should be allowed to compete to remove that monopoly, and those who obtain a monopoly by producing a good product have to fight hard to maintain that monopoly. Those who don't, go out of business or are replaced by those who will fight hard.

Copyright should be something companies have to fight to maintain, not a magic sword some tart throws at them which gives them unlimited power for a very long time.

This article, and more specifically the Pizzaright principle made me think of this:

Appleright - The idea that if Apple does it, it's different than what anyone else has done because reason...

Look at their latest patent on wireless charging...They're claiming that because they do it over a distance, rather than close contact, it's patentable...Wireless charging is Wireless charging, no matter the difference...Good job on fixing the range issue for power feeds, but not really a new and different method of charging...

Re: Re:

Not true. Look at the payment card industry...the influx of new and innovative ways of paying for things was possible because of regulation. Uber wouldn't exist if the current regulations on taxi's were never implemented...Regulation is neither good nor evil...it can be used for good, or evil, but is not inherently evil.

Re:

Re:

What is really fun is that I bet they claim to have "Invented" wireless charging. Of course this will totally overlook the fact that Tesla was looking at wireless power transmission long before any of Apples engineers were even born.

I am curious: What rights can you make in the field of IP-protection without interfering with the pizzaright and airright analogy? I thought interpretation of logic is individual and based on an individuals reference and background and thus these tests are far too flexible as to proove the point no matter what you are arguing!

Re: Re:

The claim was that copyright stifles competition. Which is bullshit. Creators compete for readers, viewers and listeners every day. And I have built my own house and produced my own food. The car? Not yet. But it's not copyright, patent or trademark that prevents me.

This right has become a problem because to enforce it requires that the Internet and all personal computers, and printers etc., are controlled by the copyright Industries. This in turn builds an infrastructure that would enable a totalitarian regime to exert massive control over its citizens, unless they resorted to pen and paper.
I think that the choice on whether to keep Strong copyright is between a totalitarian world or a free world, especially in light of efforts like SOPA,PIPA and ACTA.

Re: Re:

I think when we flag troll comments like this we are just telling the 'other side' that we can't handle criticism, as stupid as it may be.

I don't think any reasonable person on "the other side" would deduce from the reports that we can't handle criticism. There have been plenty of folks on "the other side", who've had very good discussions here about copyright. AJ has always been crazy, but he used to be a lot more civil at discussing copyright issues before he went bat-shit crazy and over the deep end. I just hope he is getting help he desperately needs.

Most of these are just feeble attempts to derail the conversation because they know they can't argue with reason and for some people it is easier to just report and remove the loony from their view. I tend to agree that report should be only used for commercial spam and hate speech, but I've long ago given up pointing that out here, since it is so easy to access the post even when it is hidden.

Re: Re: Re:

My point very simply is that your "lack of talent" attack is pointless and can be applied to anything. Everyone has different skills and talents. Just because someone can't make a movie does not mean they "lack talent".

As for your argument that copyright does not stifle competition, what do you think it does? Stifling competition is EXACTLY what it does. Now when done in reasonable manor there is nothing at all wrong with that.

I have no problem what so ever with copyright for its intended purpose. That purpose is to ENCOURAGE CREATION. Now I want you to explain to me how is Disney's copyright of steamboat willy encouraging Disney to make new things. (In case you missed it, Disney is DEAD, he is not going to make anything new... So WTF is his stuff still copyrighted for?)

If only...

In the end, it's fine to argue that copyright has important benefits and value -- but that's not the same thing as arguing that it's a part of free market capitalism. Because it's not.

And in the time I've been reading techdirt and occasionally poking around other pro-copyright blog, reading the linked statements from Mr Dodds et al, it's so very rare that any attempt to offer any kind of evidenced based proof of the former.
Almost every argument made for the "important benefits and value" is either argued as "because it just is, ok!" or based on some obviously false statistic like claiming it creates 1/2 the jobs in a country or generates revenue higher than the entire GDP.
And even those arguments generally amount to the lesser percentage of the "rationale" and the larger percentage is reserved for throwing around words like "moral" and "theft" and "pirate" and "boston strangler" and other hyperbole.

My gut feel says that granting some sort of limited monopoly right does have value, but the more I read on both sides of the argument the less the argument for stacks up because no-one seems able to articulate it and back it.

Lord, this nonsense again? Please, what exactly is "non-property-like" about IP? I know AJ raked you over the coals about your incomplete understanding of property laws before, so I'm sure you won't have an answer for me either. You're just making up your own definition of property--a definition unsupported by any previous case law or legislation--and pretending that the debate is over. In this matter, you are incorrect, and thus everything that follows is, to put it politely, a steaming pile of donkey diarrhea.

All property is a construct, tangibility doesn't enter into it. So, as was made abundantly clear last time around (before I lost interest in the pussy-footing), the intangible qualities of IP are property-like, because they are defined as so. "Property" doesn't exist as a natural entity. It's all dependent on how the law defines it.

Are there intangible aspects to IP? Of course, but that doesn't negate the nature of the property in the slightest.

Re: Re:

The article you linked is written by someone who is so desperate to defend IP, that they end up being completely nonsensical. Let me give you a clear example.

The idea that a creator, whether of crops or books, should get only the minimum that “society” decides is necessary to keep him or her working might belong in the Democratic-party platform, but surely it does not belong in a paper from the RSC.

The assumption is that this idea is antithetical to Republican ideals. However, this is exactly the kind of thing that conservatives fight for all the time. The idea is that a good or service be sold at an amount sufficient to motivate them to continue doing it. Guess what, that's econ 101. If a good is being sold for MORE than that, that means you are operating with a market inefficiency. It's why conservatives generally fight against things like minimum wage, because they force businesses to pay labor more than it takes to motivate them to continue producing the good.

It's exactly the same with copyright. The arts thrived before copyright. They thrived after copyright was instituted. They thrived after it was extended over and over again. The market already provided the incentive to create. All copyright did was create a market inefficiency to drive up the cost at the expense of consumers. The only way a republican can support copyright is if they do not understand how it completely conflicts with their core platform.

Re: Re: Re: Re: Re:

Even if you assume, for the sake of argument, that copyright is property, it still doesn't follow at all that it is required for a free market. All property rights consist of legally enforceable entitlement to control the property in various ways. A free market involves the unrestricted ability to sell and buy various rights which already exist by virtue of the decision by society/the state to legally enforce them.

The willingness to enforce some of these rights doesn't imply anything about other rights. We could theoretically say that your property rights in land allow you to kill and eat trespassers, but we don't. Therefore homebody cannibalism is not a property right because we decide, for moral reasons, that it should not be. Similarly, we decided that people cannot be owned as property for moral reasons. There is no argument based on how we actually treat property rights which weighs for or against deciding that particular rights, like copyright, should be recognized property rights.

Re: Re: Re: Re: Re:

All regulations stifle at least some kind of competition. You might say that stifling ponzi schemes is worthwhile but that means that if I wanted to start a ponzi scheme business as competition to non-ponzi scheme businesses I am not allowed to. And if I wanted to buy into one I also am not allowed to. Now non-ponzi scheme businesses have less competition in that market.

Regulations always skew a free market. A taxi that doesn't mess with their meter no longer has to compete against one that does. In a free market, people would just not use that taxi instead of having the government prevent them from using them. Hence preventing competition.

Re:

"I know AJ raked you over the coals about your incomplete understanding of property laws before, so I'm sure you won't have an answer for me either."

When trying to paint Mike into a corner and prove your point, it really doesn't help to make reference to AJ. Especially not given his behavior for the past few days or the comments he's been making. Besides, he didn't actually rake anyone over any coals. He twisted what Mike said and then ran with that, which you appear to be doing to. And if you can't read, Mike quite clearly stated what is and isn't non-property-like in the last article if memory serves me correctly. Of course, reading the articles in order to get said information isn't quite as lovely as the feeling I'm sure you and AJ feel when you demand answers to your questions and Mike sees fit not to reply to children. But hey, to each their own.

Re:

Re: Re:

One of the biggest problems with AJ's attempts is he's attempting to coax an answer from Mike he believes will discredit him. That's most likely why he insists on asking him the same question in the comments, instead of having a private conversation.

Stupidest assertions yet seen.

"the exclusive rights created are limitations of property rights (it prohibits me from storing the bitpatterns of my choosing on my own hardware)." -- No, it prevents you from directly duplicating what others made from a prior copy. You're free to get any bit pattern of your OWN making on there.

"arguing that it's a part of free market capitalism." -- You guys have many exceptions to what you call capitalism: the vulture variety isn't real "capitalism", either, I suppose, nor leveraged, bank-bailouts, the Federal Reserve -- well, too many plutocratic scams to list: just show me where IS any "free market capitalism", Mike. You set up a strawman without being able to instance a single straw.

Mere engineers designed the Internet: Mike "Streisand Effect" Masnick fulfilled its promise!http://en.wikipedia.org/wiki/Streisand_effect
When the history of teh internets is written -- as it already is on Wikipedia by either Mike "Streisand Effect" Masnick or a virtual sock-puppet -- then HIS name will stand out!

Re:

You're going to the legal definition and saying it's property based on the legal definition of property. Therefore the only reason it's "property" in your eyes and has no non-property like features is that it was given that definition by the government.

These posts are trying to point out what is wrong with the current system (AKA the goverment's definition/allowance of copyright/IP). Therefore, Mike (et al) isn't assuming the legal definition. You can't argue against the current definition and say it's wrong by assuming it's right....

Therefore, throw your current status quo out the window and ask yourself is IP the same as a piece of pizza or is it more like pizzaright?

Re: Re: Re: Re:

I'm still waiting to hear how it stifles competition? Because you can remix it? That's kind of weak. Millions of new, original creative works are spawned every year. Relative to those, copyright infringement claims are rare. Claims are almost always someone profiting or being unjustly enriched from the work of another. I have never once heard an actual creator say that he cannot compete without infringing the work of others.

Re: Re: Re:

Stupid quote translation:
The idea that people should be paid what something is actually worth instead of what the government dictates you must pay is an idea that belongs in the democratic party platform.. We republicans don't believe in actually earning things.

Exceptions all the way down

In general, I can do what I like with things I buy (not entirely true, but very close)...
Unless the thing embodies a copyrighted work...
Unless what I want to do is fair use...
Unless that fair use is prevented by a DRM...
Unless there's an exception to the "you can't break DRM" rule for this use.

The fact that it gets this complicated to decide what is legal is a great indication that copyright itself hurts the free market (the free market operates right at the top, where I can certainly buy and sell things I own). The concept of "fair use" (and the "limited times" part of copyright) only exists because otherwise copyright would interfere way too much with everyday life. The fact that the introduction of laws protecting DRM introduce exceptions to the exceptions to the exceptions to the exception to the rule that I can generally do what I like with things I own should have been a huge red flag to the people drafting the DMCA.

Re: Stupidest assertions yet seen.

No, it prevents you from directly duplicating what others made from a prior copy.

First of all, it does not prevent such activity at all, yet. When all communications and activities are perfectly monitored, then we can have effective prevention.

And, as a matter of fact, the law does prohibit an entire class of bit patterns from being stored on Rick's hard drive: the set of bit patterns which some other person has previously created and to which that person has withheld permission (and it is worth noting that permission is, by law, automatically withheld unless specifically granted). Whether they are placed on the drive by Rick meticulously setting them one by one or by hitting Ctrl+C-Ctrl+V is irrelevant. Those patterns are verboten, because someone "owns" them.

Re:

I know AJ raked you over the coals about your incomplete understanding of property laws before, so I'm sure you won't have an answer for me either.

That's exactly right. Mike will keep writing article after article about how copyright is not property, but he won't actually debate the point in the comments. Heck, he won't even admit that he has admitted that copyright is "property" as that word is used in the Due Process Clause. Now why wouldn't Mike want his readers to know that he secretly admits that copyright is "property" in certain contexts? Hmmmm. Anyway, you and I both know that Mike won't stand behind his own words.

Re: Stupidest assertions yet seen.

Re: Re:

When trying to paint Mike into a corner and prove your point, it really doesn't help to make reference to AJ. Especially not given his behavior for the past few days or the comments he's been making. Besides, he didn't actually rake anyone over any coals. He twisted what Mike said and then ran with that, which you appear to be doing to. And if you can't read, Mike quite clearly stated what is and isn't non-property-like in the last article if memory serves me correctly. Of course, reading the articles in order to get said information isn't quite as lovely as the feeling I'm sure you and AJ feel when you demand answers to your questions and Mike sees fit not to reply to children. But hey, to each their own.

Mike starts with erroneous suppositions that he is unwilling and unable to explain. He has to pretend like the last 300 years didn't happen to the meaning of "property." He has to pretend like, even though copyright is purely the product of a statute that is defined and enforced through the law, that it's not at all legal issue. That makes no sense. Nor can Mike explain what the legal meaning of the word misses that the Humian meaning doesn't. We all know that it's not naturally rivalrous or excludable. The law fully understands that. The law also makes it excludable. Yes, the exludability is de jure, not de facto, but that is irrelevant. The law catches all of the nuances that he seems to think completely fool everyone. It's rubbish. Just admit that it's "property" as that word is actually used in the 21st century, make your points about it not be rivalrous notwithstanding, and move on. He talks about "getting real." Well, get real and admit that it is property.

Re: Re:

Copyright is purely a statutory construct. Without the law, there is no copyright. Pretending like because it is not property-like because it is not naturally excludable begs the question of where does it say that something must be de facto excludable before it can be deemed property? The meaning of "property" has come a long way since Hume walked this earth. To ignore the reality that copyright is property is just to play word games.

Re: Re: Re:

One of the biggest problems with AJ's attempts is he's attempting to coax an answer from Mike he believes will discredit him. That's most likely why he insists on asking him the same question in the comments, instead of having a private conversation.

And every response of Mike's is obviously for his reader's benefit and not to just address the issue at hand. All he has are games and foot stomping. He won't just get down in the comments and actually debate things in a productive manner. It always turns into talking about talking about it, rather than actually just talking about it.

Re:

If I buy a toy, I own that toy. I accept I can't say I made it, but I still own that particular copy. & I can do anything I want w/ it (use it, sell it, gift it, customize it, tear it appart & make something new from the aprts). It can't be taken from me unless I allow it. That is what a Property Right does.

But music, movies, E-books & other digital files are different. I may buy it, but I have to worry that the file, even if legally on a single device & otherwise following every law applicable to it, could disappear because someone made a mistake, or, worse, doesn't like what I'm doing w/ what I legally purchased & am otherwise fully legally using.

I had other things I wanted to say, but it made this post WAY to complex, so I started over to lay out the basic principle.

IP isn't a Property right, because others still retain some level of control over it, beyond just saying "you can't say you made it".

Re: Re: Re:

AJ still doesn't realize the law as it is currently practiced is not reality. When people tell you to get real this is why, it's because the law, even though it's actually a formalized set of abstractions, is not reality and yet you keep presenting it as if it's the authoritative word on reality.

Re: Re: Re:

Re: Re:

Just because 1 player in a market does it better than anyone else does not mean competition is broken. And there's nothing inherently wrong with a monopoly so long as that monopoly's position is not aided by government.

Re: Re: Re:

I'm not speaking for Mike, and I'm not ignoring the fact that the law treats copyright as property. I'm hoping to change that fact, so ignoring it gets me nowhere.

What I'm saying is that copyright as property fundamentally does not make sense in the world we currently live in.

So I'll ask you again, can you justify your definition of copyright as property without resorting to the artificial legal construct that you have just admitted defines it as property?

I'm asking you to put in words a simple and sensible definition why it makes sense to treat something that is non-scarce, non-excludable, and non-rivalrous as property. If you can do so, maybe then you're not playing word games.

Re: Re: Re: Re: Re:

It stifles competition by granting a monopoly on a work. This prevents any others from using it or distributing it. So in that way it prevents competition. The copyright holder is only one who can distribute or use the work.

Now like I said, This CAN BE good, but is currently being wildly abused. It is stifling of competition all the same. Your preventing the copyright holder from having to compete with anyone else to sell copies.

Re: Re: Re: Re: Re:

The whole point of copyright is to stifle competition. That's its primary function. It gives you exclusive rights to distribute content you produce and prevents others from distributing it as well, thus competing with you. DUH! It stifles competition by design.

Re: Re: Re:

Once again, you conflate two different concepts, and once again I suspect you shall run away once called on that fact.

A copyright as property (under, say, the due process clause) is not the same thing as copyright as a property right. And I suspect you know that.

The Due Process Clause protects interests in property, i.e., property rights. You guys don't seem to understand that the word "property" just refers to a bundle of rights in a thing. The government cannot deprive us of our bundle of rights in a thing without due process of law. Whether that thing is tangible or intangible is irrelevant. What matters is the existence or nonexistence of the property right.

Copyright antithetical

Let's see...
"Free": copyright restricts other people's freedoms to produce and compete.
"Market": copyright severely curtails production in the market to just one supplying entity.
"Capitalism": copyright only allows one person to capitalize on a particular product, often in an arbitrary manner.
So no, copyright is not a part of free market capitalism. In fact, copyright is in every way disjoint from free market capitalism. Granted, we have a mixed-capitalist economy in the US, and it could be argued that nothing in the definition of mixed-capitalism precludes the existence of copyright, but empirically of course, it doesn't need to exist in as large of a scope as it does now.

Re: Re: Re: Re:

Wouldn't it be foolish then to jump the gun and say it is property?

What's foolish is pretending like it's a monopoly in the economic sense of that word. I'm often surprised that Mike espouses this nonsense. You have to define the market to be the market for that very work. That's not a monopoly. If I write a book, you can write a book about the very same subject as me and compete directly in the same market with me. If I had a monopoly, you couldn't compete with me. But Mike chooses to use the inaccurate word "monopoly" for much the same reason he refuses to admit it's "property"--he's going for effect. He's trying to manipulate the debate, so he's insisting that words be used in his silly, narrow definitions. The overwhelming consensus is that copyright is "property." It's not even debatable except for perhaps by a few academics. The fact that everyone calls it "intellectual property" should tell you someone about it's place as property qua property.

Re:

Re: Re: Re: Re: Re:

I would very much like to prove him wrong, thus the requests for debate. You are correct about that. I do believe I can point out his errors if only he would actually engage me on the merits. Humiliating him would bring me pleasure because I think he's intellectually dishonest and deserving to be outed as a fake and a loud mouth. I think he knows I can out him, hence the personal attacks and the refusals to ever just discuss something on the merits. You don't need a degree in psychology to this out.

Re: Re: Re:

That there is moral and economic contention about it being property doesn't deter you?

As for the topic, I remember you standing your ground on the statement that "copyright is property.". Nobodys arguments or sources could make you admit that it can be contested.

As noted before, laws are always inherently vague on definitions to avoid the usage of words being the point in court cases and it is thus not the optimal way to look at definitions. Again you shut the argument down.

In the end there is one thing you seem to want and that is comments from Mike Masnick. The discussions/topics we as readers are trying to advance do not seem to interest you. That is why I have lost some respect for you.

Re: Re: Re: Re:

We make it artificially scarce so as to give authors a property right. This property rights works to incentivize the creation of new and better works. By giving authors a marketable right--the artificial, de jure right to exclude--we give them an incentive to invest the time, energy, money, and self into new works. Thus, by first giving a benefit to authors--the exclusive rights--we in turn benefit the public at large who get access to these works. It's a quid pro quo. So yes, it's obviously non-naturally scarce, but we make it scarce artificially because that serves a private purpose that in turn serves a public purpose.

Re: Re: Re:

My mind just boggled here.

There's a lot inherently wrong with monopoly, including that it presents a threat to good government and societal freedom itself.

The sole reason we don't just make monopoly outright illegal in the US is because you can't do that without infringing on Constitutional rights. But I've never before heard anyone argue that monopoly was a good thing.

Re: Re: Re:

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property." - Thomas Jefferson

Re: Re: Re: Re: Re: Re:

Re: Re: Re: Re:

If he (1) has to go back 300 years to find support for his definition of a word, and (2) has to ignore other meanings that have developed in the interim and have gained universal acceptance, then yeah, he's not being quite honest here.

Sorry you lost respect for me, but fighting off all the sycophants and sock puppets gets old. I would rather just discuss this with Mike directly. He's the one writing articles about how copyright is property. He's the one that should stand behind that claim.

Re: Re: Re: Re: Re:

Ok. And what would the sensible thing to do be when the evidence shows that artificially imposing scarcity is not required in order to serve that public purpose?

Or at the very least, what is the sensible thing to do when the evidence shows that imposing the scarcity for longer than anyone will likely be alive with draconian terms that seriously harms other things being created for that same public purpose?

Re: Re: Re: Re: Re: Re: Re:

Re:

Material goods are rival, 'intellectual' goods are non-rival. It is a simple, plain, indisputable, and fundamental difference. And that difference completely changes how we choose to deal with those goods.

You can quibble about the definition of a word, or you can focus on the hard facts of reality.

Re: Re: Re: Re: Re:

Better work is really subjective. You might argue that the grey album is an improvement over the black album or white album (I do not like that kind of music much, but please play along). The direct use of others work can be associated with improvement and by disencouraging that you are creating a world where communication between original creator and new creator is the primary stop-gap. In a world where copying is hard and asking others is easy it is not as much of a problem since the market in itself is discouraging for innovation. However, the internet makes copying and distribution extremely easy, making for a good market for mashups, instant input and continuous development of a work of art. The constant need for negotiation and communication forced on the market is the primary stop-gap for development and improvements in that world. Therefore there is an argument for copyright limiting creativity and improvement of art. It is not a problem in the physical world, but on the internet it is a problem.

USA and EU has fundamentally different enforcement methods and both are far from optimal. USA has a better encouragement to create, while EU has a better disencouragement from going to court or let lawyers duke it out. In the end it is still a pot meet kettle moment since copyright is still the same far too flexible beast, infringing on patents and trademarks by taking over their areas in court and forcing moral superiority of the original creator on the new creators.

Re: Re: Re: Re: Re: Re: Re:

No you can't! It's nothing even close to the same as apples. We can't both produce and distribute the exact same movie independently, only one of us could hold the copyright and the other would have to license it. Competition inhibited

Were I to grow apples, I don't have to pay you shit. I can grow my own and you could stuff it up your ass. If I want to grow apples and sell them there is nothing requiring me to pay you for the right to do so. I can use my own land, my own trees, and my own labor. I don't need anything from you and I owe you nothing. Competition uninhibited.

You must be pretty dumb to think that an apple is the same as a movie in terms of economics. That's as absurd as that "arrights" mentioned in the article.

"Intellectual Communism"

You know something is up when you have people saying that a lack of copyright would lead to communism on an arts/science level. When, by definition, it is copyright law that is closer to communistic ideology, because it deliberately forbids multiple markets for the monopolistic gain of a Soviet-like government that may as well be the MPAA, since the government is implicitly subsidising them.

And all under the excuse that it is the only way to solve the free-rider imbalance between the ease of copying and the difficulty of labour to produce arts and sciences (it's not true - you can solve this problem with simultaneous payment from all consumers in the form of tickets for music gigs, or Kickstarter; and in the case of sciences, higher taxation on any business that uses new scientific discoveries that goes straight to the inventors... not patents).

I ask again: what evidence would the advocators of copyright need in order to falsify the idea that copyright is the only way to gather incentives for artists? If they cannot answer this question, then they are basically saying that copyright is an unfalsifiable idea - in the fields of scientific and skeptical thinking, this means it is a weak claim. But with the mountains of evidence in the form of providing a creative service through admission (tickets for gigs, theatres, cinemas, Kickstarter, IndieGoGo), I would say my claim to falsification and Occam's Razor is much more likely to be correct.

Here's what I do not understand about some Libertarians... they hate any kind of government regulation on the free market - benefits, health care, subsidies, military budgets, substance regulations, basically an extreme dislike towards the government poking its nose into where it doesn't belong especially when it comes to free trade..... UNLESS IT'S COPYRIGHT LAW. All of the a sudden, a huge chunk of communistic monopolisation at the destruction of competing markets is tolerable? And in some cases with these same Libertarians, maximised?

This is insane. At least Jefferson knew he was being contradictory when he couldn't think of another solution to the free-rider problem. Unfortunately he didn't have enough historical pretext to see the massive slippery slope hiding behind copyright protection.

There are two kinds of materials in the free market: goods and services. The problem in regards to intellectual property of arts and sciences in the free market is that it treats the service (of creating arts and discovering sciences) as goods. This is bound to cause all kinds of abnormal fluctuations because the economic value of what should really be a service will never be accurately reflected in economics until IP laws are thrown out.

"But the free-rider problem cannot be solved any other way!" ... Yeah, I'd like to see some hard scientific evidence on this. And I doubt the IP advocates will have it, especially considering how the first copyright laws were knee-jerk reactions to the invention of printing presses, giving next to no time at all to test for other solutions. Hint hint - for the sake of repeating myself, tickets or crowdfunding (same thing).

I didnt read most of the above, so..

I hope you all know that the USA is a closed market..
An OUTSIDE company Can not Bring to the USA any products without going through 1 of the FEW major corps, Adding TAXES(tariff) and Tons of overhead to the price of the product..Ask Toyota, Nisan, and others..WHY they moved to the USA..
WE are NOT an open market. so this question is invalid.

I would LOVE to have products come from OTHER companies outside the USA..to be marketed at a FAIR PRICE..
Lets say that the Company that MAKES the IPOD, brings in a product at 25% over cost to the USA..APPLE would PISS their pants. An Ipod product at That needs NO contract, and sells at 1/2 the price(or cheaper) then what you are NOW paying??
How would you like to compete with Clothing prices at 40% off..Every Store would go NUTS with an open market.

Re: Re: Re: Re: Re:

I am not going into what he is or isn't saying, nor am I going to argue that there are some rather weak arguments being thrown around in defence of some less thought through articles.

On the respect thing, my point is: If you want to speak to Mike, then contact him per mail and set up a physical meeting or find another way to get in contact with him (facebook, twitter, phone). You really do not do yourself a favour by posting comments in the discussion-section of his "blog" without actually engaging in the discussions. Also making actual observations apart from trying to discredit the written articles is a better ground for discussion than just being mean (ad hominem, poisoning the well, trapping questions etc.).

Re: Re: Re:

Re: Re: Re: Re:

How could you possibly make monopolies illegal when monopolies are economic snapshots of a given market at a given point in time? Microsoft had a monopoly on the internet browser for a number of years (after starting out as the underdog in that market). That certainly isn't the case today.

The concept of property rights as used by economists and legal scholars are related but distinct. The distinction is largely seen in the economists' focus on the ability of an individual or collective to control the use of the good. For example, a thief who has stolen a good would not be considered to have legal (de jure) property right to the good, but would be considered to have economic (de facto) property right to the good.

It is not a strawman.

... just show me where IS any "free market capitalism", Mike. You set up a strawman without being able to instance a single straw.

What you characterize as a strawman was not "set up" by Mr Masnick -- support of free market capitalism is a plank in the Republican party platform and, as such, it is entirely appropriate to question whether the copyright policies they pursue reconcile with the party platform.

Re: Re: Re: Re:

A free market is like true Communism: an unrealistic philosophy because of people.

As we have often seen, people think the free market concept is great when they are making money by taking risks, but when they lose money, they often vote to have someone else pay for those risks. Or in the case of stuff like pollution, they look for ways to pass the negatives on to someone else to pay for.

Re: Re: Re: Re: Re: Re: Re: Re: Re:

Just like apples, you can sell the ones you yourself produce. You don't have the right to sell the ones I produce.

But, unlike apples, if I examine the ones you produce closely and then produce similar or identical ones myself, I can't sell them. And if I buy your apples and then make apple pie out of them, I can't sell that either.

Re: It is not a strawman.

What you characterize as a strawman was not "set up" by Mr Masnick -- support of free market capitalism is a plank in the Republican party platform and, as such, it is entirely appropriate to question whether the copyright policies they pursue reconcile with the party platform.

The politics/economics aspects of this discussion interest me. I don't think most Republicans would support what would be required to have a true free market economy. It would be too disruptive to their supporters.

Re: Re: Re:

Just because 1 player in a market does it better than anyone else does not mean competition is broken. And there's nothing inherently wrong with a monopoly so long as that monopoly's position is not aided by government.

I didn't say there is something inherently wrong with a monopoly, and quite frankly, I agree with you. Someone who is in a monopoly position (without government intervention,) got there with a lot of sweat and effort. And I don't have a problem with them keeping that monopoly so long as they continue to work hard for it. Their biggest fear, and what keeps them competitive is someone else coming along with a better product, and so in order to stay on top, they need to keep their products on top.

Microsoft, so long as they were playing nice, had a good monopoly, and you won't hear me complaining about them. There is still plenty of competition to Microsoft, in the form of Apple and the Open Source vendors, that if a company doesn't want to deal with Microsoft, they aren't forced to do so, and so long as Microsoft isn't using their influence to destroy their competition, such as suing all Linux users or having other parties do so, they are competing fairly. People choose Microsoft because they offer value over their competitors.

However, competition is still broken, not that it is a problem or bad thing. The moment a competitor comes along that does it better for less, then they will find their monopoly disappearing quickly.

Re: Re: Re: Re: Re:

How could you possibly make monopolies illegal when monopolies are economic snapshots of a given market at a given point in time? Microsoft had a monopoly on the internet browser for a number of years (after starting out as the underdog in that market). That certainly isn't the case today.

Having a monopoly isn't illegal, and shouldn't be. Using your monopoly to unfairly crush the competition is another story. If you fairly crush them, however, you win.

Of course copyright is part of free markets and therefore capitalism. One could not really exist without the other. The problem here is that "free market capitalism" has very little to do with free markets and trade or real capitalism.

If a big enough playercan use government regulations/subsidies to monopolize the market thats not a free market. Its not capitalism either because it creates 'too big too fails'.

Re: Re: Re: Re:

Someone who is in a monopoly position (without government intervention,) got there with a lot of sweat and effort.

That's totally irrelevant to the question of whether or not monopolies are beneficial.

Their biggest fear, and what keeps them competitive is someone else coming along with a better product, and so in order to stay on top, they need to keep their products on top.

Actually, no. just the opposite. A monopoly no longer has to worry very much about the quality of their products when they are big enough to make the barrier to entry nearly impossible to mount and to outright purchase any competitors who manage to do so. Both of these are the historical methods by which monopolies grow and persist. The quality or nature of the product becomes relatively insignificant.

Microsoft, actually, is a fantastic example of this effect. When they had their defacto monopoly, their OS was inferior to the competition. They succeeded due to their ability to force computer manufacturers to buy a license for every machine they produced whether a Microsoft OS came on it or not. Under those circumstances, the manufacturers only bought Microsoft.

That arrangement was such a tight locking that during that time, Microsoft's OSes (DOS and Windows) never substantially improved past DOS 6 and Windows 3.1.

It was after Microsoft was sanctioned for abusing their monopoly that it had to face the competition, and that was when you saw much greater improvement in their product line and the increase in the use of alternate operating systems.

Plus, of course, that there never was a day when Microsoft "played nice" anyway, regardless of their monopoly position.

Microsoft was a classic Bad Monopoly, limited only by the fact that their monopoly was not totally complete and that the government stepped in before they got as egregious as they could have.

Re: Re: Re: Re: Re:

The overwhelming consensus is that copyright is "property." It's not even debatable except for perhaps by a few academics.

...and the drafters of the Constitution, or did you miss the entire debate they had on this subject? Too bad, because a lot of it is on this exact topic.

The consensus then was that including copyright in the Constitution was dangerous because it might lead to a situation where people will start considering it as if it were actual property. If that happened, they feared, it would distort property law in such a way as to pre3sent a real danger to freedom and liberty.

Re: Re: It is not a strawman.

Most modern Republicans that I know or have heard speak on the subject most definitely object to the free market itself. They use the words, but what they mean is clearly "corporatism," which is allergic to free markets.

To be totally fair, an awful lot (but not most) of modern Democrats I know or have heard speak are on that same page as well.

Re: Re: Re: It is not a strawman.

To be totally fair, an awful lot (but not most) of modern Democrats I know or have heard speak are on that same page as well.

Yes, agreed. That's why some of us are pointing out that there isn't actually much support for true free market capitalism anywhere. It would disrupt current power blocks so they don't want it, and it's not the economic system of choice among those who advocate alternative economies.

Plus there is increasing awareness that we have negative externalities that are not always addressed in some economic systems.

Re: Re:

Re: Re: "Intellectual Communism"

The biggest bunch of libertarians I know have turned copyright on its head, and do not worry about the free rider problem. They produce GNU/Linux, BSDs and related free and open source software.

And I have said that it will be interesting to see how the libertarians and the copyleft/commons folks both come at copyright, but with significantly different visions of a desirable economic outcome. The commons folks see the free and open source software movements as a model which, in time, can be a model for all forms of economic production, exchange, ownership, and access.

Re: Re: Re: Re: Re:

Actually, no. just the opposite. A monopoly no longer has to worry very much about the quality of their products when they are big enough to make the barrier to entry nearly impossible to mount and to outright purchase any competitors who manage to do so. Both of these are the historical methods by which monopolies grow and persist. The quality or nature of the product becomes relatively insignificant.

I'd agree that most of the monopolies have been bad, such as Standard Oil or AT&T and even Microsoft, but I think the problem in all of those cases wasn't the monopoly itself, but the use of that monopoly to strangle competition through anti-competitive means (monopolize.)

Unfortunately, I am having problems thinking of a monopoly that hasn't been bad...maybe Army and Air Forces Exchange Service? They have an effective monopoly (selling goods and services to armed forces on military bases,) government granted, and still seem to be good guys about it. But I think that may be because they are regulated by guys with guns.

Re: Re:

Re: Re: Re: Re: Re: Re:

Army and Air Forces Exchange Service

I haven't shopped in an exchange for years, so I don't really know how it is structured these days. But seems like the model of an exchange can fall within two different models, neither of which is a true monopoly.

1. In-house services. If your company decides to provide what your employees need, then you might decide to do it as part of your corporate structure. Your employees buy within the company.

2. Contracts. Companies sign exclusive contracts all the time. There can be competitors, but during the length of the contract, there is only one provider.

What makes me most nervous about a monopoly situation is a company or industry big enough to control the market, control those making the laws, and the ability to stifle research linking them to negative externalities. I see that happening both with fossil fuels and with GMOs.

Re: Re: Re: Re: Re:

And you seem to be ignoring the fact that economists and legal scholars use the term "property rights" differently.

From Wikipedia:

The concept of property rights as used by economists and legal scholars are related but distinct. The distinction is largely seen in the economists' focus on the ability of an individual or collective to control the use of the good. For example, a thief who has stolen a good would not be considered to have legal (de jure) property right to the good, but would be considered to have economic (de facto) property right to the good.

Right. Mike wants to talk about copyright as part of some theoretical, abstract, economic model. That's not the real world. Copyright is not defined by economic models. In the real world, copyright is defined by the law. In the U.S., turn to Title 17, Section 101 et seq. That's where real life copyright is defined. It is defined by an Act of Congress, not an economist's theoretical model. And in the real world, copyright is property.

Shorter version: Is it called "intellectual property" or "intellectual artificial scarcity"? That should tell you which side won this debate.

Re: Re: Re: Re: Re: Re:

On the respect thing, my point is: If you want to speak to Mike, then contact him per mail and set up a physical meeting or find another way to get in contact with him (facebook, twitter, phone). You really do not do yourself a favour by posting comments in the discussion-section of his "blog" without actually engaging in the discussions. Also making actual observations apart from trying to discredit the written articles is a better ground for discussion than just being mean (ad hominem, poisoning the well, trapping questions etc.).

I believe I've engaged with more people and defended myself in more detail than any other poster on TD that I've seen in the past 2.5 years. So I don't agree with you that I am not "actually engaging in the discussions." Your point is otherwise noted. Thanks.

Re: Re: Re: Re: Re: Re: Re:

You consistently talk about how he is "intellectually dishonest", yet you consistently use the phrase "copyright is property."

Even Mike admits that copyright is "property" as that word is used in the Constitution. But he refuses to admit it on his blog. Hmmm.

William Patry has said on his blog that, "describing copyright as property is a rhetorical device used to get to particular results, results that I think can in particular cases be too unbalanced."

That's funny, because in his treatise on copyright, Patry has no problem with recognizing copyright as "property." See, e.g. 2 Patry on Copyright § 4:74 ("Section 202 of the Act makes a distinction between the physical embodiment of a work of authorship and the intangible intellectual property.").

The only one using it as a rhetorical device is Mike when he pretends that because in some theoretical economic sense that he can't even cite to it isn't property, then we can ignore all of the real world sense where it is property. Ever heard of the phrase "intellectual property." Hmmm.

Re: @joe

Not sure I get it. Is it some kind of existentialist point? My philosophy is rusty. Theft is different than infringement, I agree. These differences are noticeable in the fact they are called different names and are delineated under different laws. I know some people use a broader meaning of theft that includes infringement. That's not the common law meaning of theft traditionally, but the meaning of words change over time (for example, property means much more today than it did 300 years ago). "Theft of services" comes to mind as an example of theft that isn't about taking material objects. I think the word has different meanings.

Re: Re: Re: Re: Re: Re:

I think Microsoft got railroaded. Netscape claimed MS was abusing its monopoly power by giving away IE and/or bundling it with Win98 (or whatever version it was). I'm sorry, but it was MS's OS. If they want to bundle an internet browser with it, that's their choice to do so. MS was not preventing people from installing a competing product.

Re: "Intellectual Communism"

Re: Re: Re: Re: Re: Re:

Right. Mike wants to talk about copyright as part of some theoretical, abstract, economic model. That's not the real world. Copyright is not defined by economic models.

Almost nothing you write above is accurate -- which is what bugs me about trying to have any discussion with you. You regularly distort what I say because you don't like what I say.

I talk about the economic definition of copyright, because *that is the only thing that matters* if we are seeking to maximize economic benefit. Which is the point here. After all, the very discussion we're having here is about "free market capitalism" -- an economic situation. So the "real world" issue is *SOLELY* the economic reality of the good, and that is based on its fundamental (not legal) characteristics. The fact that content is non-rivalrous and non-excludable is a fundamental characteristic, which is what matters in looking at how we maximize efficiency for the market.

That you can add *legal* limitations to that, via government-mandated monopoly privileges is meaningless -- which is the point of the examples in the post. Again, under your definition, the pizzaright and the airright discussed in the article are a form of "free market capitalism" because under your *legal* focus, those would be a form of "property." But, clearly, that makes no sense economically speaking. No one would reasonably argue that a market of air rights is a free market form of capitalism.

That's why it matters what the economic reality is, not the legal definition, which is outside the fundamental properties of the offering.

In the U.S., turn to Title 17, Section 101 et seq. That's where real life copyright is defined. It is defined by an Act of Congress, not an economist's theoretical model. And in the real world, copyright is property.

Again, you are discussing something different -- for reasons I don't understand, other than by moving the goalposts you think you are proving a point.

Shorter version: Is it called "intellectual property" or "intellectual artificial scarcity"? That should tell you which side won this debate.

That's about marketing, not economics. So, not sure your point.

You can keep trying to make the point you're making, but it doesn't make it any closer to being a reasonable argument. It remains, as many people have said, an attempt to distract from the economic discussion.

Re: Re: Re:

Re: Re: @joe

The reference to "infringement" was not meant to be the focus of the comparison.

To clarify, if you believe that another's property can be "created" by rearranging your own property, then surely you must believe that rearranging this property again is comparable to the destruction of property that is not your own (a seemingly more outrageous crime!).

If this is not the case, it's like saying that the laws of mathematics can change in the middle of an equation.

Re: Re: Re: Re: Re: Re: Re:

I talk about the economic definition of copyright, because *that is the only thing that matters* if we are seeking to maximize economic benefit. . . . .

Yes, economists can sit around and create models where the economic benefit is maximized. And what you aren't saying is that there are different camps of economists, and each camp thinks the other is wrong. There is bickering and debate about whose economic model is correct. And there is bickering and debate about whose studies use the best methodologies. Etc. But none of that reflects the real world. Copyright is defined by Congress, and its metes and bounds shaped by the courts. Does economic theory play a part in some of those decisions? Sure. Are all decisions made based on these economic theories? Not even close.

So what you're talking about is fantasy land, whereas I'm talking about actual copyright as it actually is defined and as it actually exists and as it's actually enforced. In the real world that actually exists, copyright is not defined by economic models. It is defined by the law.

That you can add *legal* limitations to that, via government-mandated monopoly privileges is meaningless -- which is the point of the examples in the post. Again, under your definition, the pizzaright and the airright discussed in the article are a form of "free market capitalism" because under your *legal* focus, those would be a form of "property." But, clearly, that makes no sense economically speaking. No one would reasonably argue that a market of air rights is a free market form of capitalism.

I didn't say anything about free market capitalism. I think that whole argument is dumb too, but let's stick to your argument that some theoretical economic model is the only thing that matters with copyright--even though in no actual way does that theoretical model actually represent what copyright actually is.

That's about marketing, not economics. So, not sure your point.

The point is that theoretical economic models do not actually control what copyright is. The law does. And under the law, copyright is property. That everyone accepts that copyright is property is evidenced in the common term "intellectual property." It's not marketing. It's evidence that your narrow, theoretical views are not the norm.

Re: Re: Re: Re: Re: Re:

Copyright is not defined by economic models. In the real world, copyright is defined by the law. In the U.S., turn to Title 17, Section 101 et seq. That's where real life copyright is defined.

No. This is you looking at it from only one side, the legal side and declaring it's the only side.

Looking at copyright as a legal property right is one thing.

But, when you look at copyright as an economic property right it, kind of falls down. Remove the law (or the laws get ignored by everyone) and copyright falls apart.

Like the example I quoted, if I illegally download a song, I have no legal property rights to that song, but I do have economic property rights to that song. I have it in my possession and I can sell my copy or give it to someone else.

That being said, I believe that looking at copyright from the economic side is a far better barometer of what is best for society since it's based on reality and not on tradition like the law.

Re: Re: "Intellectual Communism"

Re: Re: Re: Re: Re: Re: Re:

But, when you look at copyright as an economic property right it, kind of falls down. Remove the law (or the laws get ignored by everyone) and copyright falls apart.

Where does one look up this "economic property right" that exists independent of the law? How does one enforce it? You can't and you don't. You're talking about fantasy land, where economic models maximize a given function and all the camps argue about whose model is better. Meanwhile, in the real world, copyright is purely a creature of statute. Not economic model. Statute. People like Mike use an economic approach to setting policy goals. I get that. There are many models other than Mike's, and I'm sure they all have merit. So what? The Constitution doesn't say that the economics of the situation have to be maximized. "Promote" the progress, not "maximize" it based on one camp's economics model.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Just don't try that with Roundup-ready corn or soybeans. And I can make a movie about a serial killer and so can you. But when you convert my movie to your own personal profit, forgoing the production costs i incurred- you cross the line.

Re: Re: Re: Re: Re: Re: Re: Re:

"Even Mike admits that copyright is "property" as that word is used in the Constitution. But he refuses to admit it on his blog. Hmmm."

Where? I've specifically heard him say in reference to you that copyright shares some qualities with property, but is not specifically property.

"That's funny, because in his treatise on copyright, Patry has no problem with recognizing copyright as "property." See, e.g. 2 Patry on Copyright § 4:74 ("Section 202 of the Act makes a distinction between the physical embodiment of a work of authorship and the intangible intellectual property.")."

And yet he is still aware that using the phrase "copyright is property" is asinine.

Why debate with you? You've made me mind up already that you're right, and you're still willing to ignore evidence to the contrary. That's why there's no point in having a discussion with you.

Re: Re: Re: Re: Re: Re: Re: Re:

Were I to grow apples, I don't have to pay you shit. I can grow my own and you could stuff it up your ass. If I want to grow apples and sell them there is nothing requiring me to pay you for the right to do so. I can use my own land, my own trees, and my own labor. I don't need anything from you and I owe you nothing. Competition uninhibited.

So go make your own fucking movie. That's kind of the point, dipshit. You write, you cast it, you fund it, you distribute it. You compete, not freeload.

Re: Re: Re: Re: Re: Re: Re: Re:

Re: Re: @joe

Or how about the subject of value. We did away with the labor theory of value for a theory that recognized subjectivity and scarcity.

Marx based many of his ideas and theories (exploitation, etc) on this defective theory of value. Should we keep these theories around and claim them to be "added meaning," even though they were founded on a fundamental misconception?

Another comparison:
Maximalists seem to believe that we can use subjective marginal utility to describe value in most industries but that we can use the labor theory of value in others without consequence.

Re: Re: Re: Re: Re: Re: Re: Re:

"And under the law, copyright is property. That everyone accepts that copyright is property is evidenced in the common term "intellectual property."

Who accepts this? You do, and the smart people debate it. But you disagree, because according to you, there's no point theoretical debate.

Unfortunately, your inability to see further than your nose shows us why your opinions don;t matter.

By the way, since you don't seem to be a fan of theoretical debate, which can be construed by some as an idea or "concept", it's funny that you're so hung up on Intellectual Property considering that it represents ideas or concepts.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Re: Re: Re: Re: Re: Re: Re: Re: Re:

I've specifically heard him say in reference to you that copyright shares some qualities with property, but is not specifically property.

Yes, in his theoretical models that do not actually represent copyright as it actually defined in the real world, he claims that copyright is not property. He hasn't cited even one economics text for the point, but yes, he claims that. I'm saying that in the real world, looking at the copyright that actually does exist, it's property. Mike admits this elsewhere. Why won't he admit it here? Hmmm.

And yet he is still aware that using the phrase "copyright is property" is asinine.

So the academic who has no problem with recognizing that it is property in his treatise also thinks it's asinine to call it what it actually is? Hmmm. And I think you're missing that Mike is the one making claims about it's nature as property. Of course, Mike has to pretend like economic models represent reality more than the actual laws that actually define copyright. But why let that get in the way of a good take down.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

"Yes, in his theoretical models that do not actually represent copyright as it actually defined in the real world, he claims that copyright is not property. He hasn't cited even one economics text for the point, but yes, he claims that. I'm saying that in the real world, looking at the copyright that actually does exist, it's property. Mike admits this elsewhere. Why won't he admit it here? Hmmm.?"

The theoretical models are for debate. To come here and say it's dumb to debate copyright in theoretical models is kind of pointless, unless it makes you that angry.

Also, where did he admit it?

And where is this confirmed in the real world?

You've always been good about citing your sources.

"So the academic who has no problem with recognizing that it is property in his treatise also thinks it's asinine to call it what it actually is? Hmmm. And I think you're missing that Mike is the one making claims about it's nature as property. Of course, Mike has to pretend like economic models represent reality more than the actual laws that actually define copyright. But why let that get in the way of a good take down."

Uh, you wanna cite his treatise where he contradicts himself? Besides it doesn't take away from the fact that what he says is true, the entertainment industry uses that same loaded language (language you've accused Mike of using for "effect" and language you seem to swear by) to sway people to their side and distort the true nature of things.

Mike's not pretending, he's debating theoretical situations. You're still too ignorant to see how beneficial that can be because you're hung up on your ego.

Re:

Re: Re: Re: Re: Re: Re: Re:

The license fee stifles competition. In a free market everyone competes on even footing. The presence of a license fee makes that impossible, because there exists an entity (copyright holder) that can enter and participate in the market without paying it. This skews the market.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Also, where did he admit it?

AJ is being dishonest again. In a debate quite some time ago, I noted that for the purpose of the due process clause, some courts have judged copyright to be property in the legal sense. That, of course, is meaningless to the economic discussion, as we are having here (as I pointed out above).

The fact that some legal ruling consider copyright to be property is entirely separate from the economic question. AJ doesn't seem to understand the economic question at all (hence his nonsensical attempt to argue that the law is "real" while the economics are "theoretical").

What I have never said is that copyright is property in any real or economic sense. What I said is that it has some property like attributes, which is why a court can say that it can be treated as property concerning due process. But that does not mean that it is definitively "property". Again, I have always contended that it has some property like attributes and many non-property like attributes, and anyone who ignores those non-property like attributes -- as AJ has done consistently -- is building a strawman by ignoring economic realities in the fundamental attributes of the market.

That he then uses it to argue a meaningless point, while similarly seeking to pretend that I am somehow refusing to admit to something I've said in the past, well... that just further highlights the nature of his actions here.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

You don't own the movie. You can't own the movie. You own a copyright on the movie, granted to you by the government. This grants you certain privileges that are supposed to encourage you to make movies. Those privileges skew markets by design. Otherwise they wouldn't work as incentives.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

The theoretical models are for debate. To come here and say it's dumb to debate copyright in theoretical models is kind of pointless, unless it makes you that angry.

Bring on the theoretical models. Woohoo. Mike never actually cites these economic models he insists upon. I'm pretty sure these secret models only care about copyright's natural nonrivalrous and noexcludable nature and don't turn on whether something is labeled "property." I'd like to see why these models can't handle something as basic as the difference between de facto excludable and de jure excludable. In the law, it doesn't matter how something became excludable, because the law is only concerned with the reality of whether it is excludable under the law. But I get that copyright is not rivalrous and is not de facto excludable. What I don't get is why these models break down as soon as the label "property" comes out. Where are these secret models anyway?

And where is this confirmed in the real world?

Courts, including unanimous Supreme Court decisions calling copyrights property. Congress. The executive branch. The commentary. Seems like the member nations of WIPO don't mind the moniker. Even Mike when he's being honest and answering the question of whether copyright is "property" as that word is used in the Constitution. For an academic look at how copyright has been recognized to be property, I recommend this: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=934869

Uh, you wanna cite his treatise where he contradicts himself? Besides it doesn't take away from the fact that what he says is true, the entertainment industry uses that same loaded language (language you've accused Mike of using for "effect" and language you seem to swear by) to sway people to their side and distort the true nature of things.

Yep, people on both sides of the debate use words for effect. Some more than others.

Mike's not pretending, he's debating theoretical situations.

If the situations are theoretical, then they do not represent the real world nearly as well as actually looking at the real world meaning of copyright and property.

You're still too ignorant to see how beneficial that can be because you're hung up on your ego.

I'm all for looking at the competing theoretical models. Mike can make his case for why his model is better than the hundreds of other such models. In the meantime, those models are just that, models.

Re: Re: Re: Re: Re: Re: Re: Re:

Where does one look up this "economic property right" that exists independent of the law? How does one enforce it? You can't and you don't. You're talking about fantasy land...

This is where you get hung up AJ. You can't see the forest for the trees. We are not talking about a right that can be "enforced" per se. Step out of your legalize mindframe for a moment.

Economic property rights include the implications of the law, but doesn't just stop there, it also looks at the reality of the situation. It doesn't matter if something is legal or not, it matters if it impacts the economics of the situation.

Re: Re: Re: Re: Re: Re: Re: Re:

So exorbitant licensing fees do stifle competition, dumb ass.

I've been saying for a few years now that I see a coming world of hypercompetition where the price of everything will be driven down and as p2p economics take over, there won't be enough profit in anything to encourage the formation of large companies.

Rather than feeling sorry for companies that can't make a profit because of licensing fees, I'd rather see a system where there is no need for those companies to exist in the first place. Any business that forms around licensed content should know what it is getting into in the first place. By the time the laws will have been changed, those companies will have lost tons of money. The legal system doesn't move fast enough to save them. So all that is really happening is that they raise money, cash out, and the company goes under.

Further, I'm not convinced that the companies and individuals that make the most money are necessarily making the best contributions to society, so the whole premise that a free market system is the best allocation of resources isn't something I buy into.

I'd like to see some tinkering so that we find ways to share productivity gains, allowing more people to work fewer hours. Instead of some people working long hours and others not working at all, we could facilitate a better balance of work, leisure, and family time.

So, reducing down everything to a sentence: I want to encourage so much competition that no company gains an edge.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

"Bring on the theoretical models. Woohoo. Mike never actually cites these economic models he insists upon. I'm pretty sure these secret models only care about copyright's natural nonrivalrous and noexcludable nature and don't turn on whether something is labeled "property." I'd like to see why these models can't handle something as basic as the difference between de facto excludable and de jure excludable. In the law, it doesn't matter how something became excludable, because the law is only concerned with the reality of whether it is excludable under the law. But I get that copyright is not rivalrous and is not de facto excludable. What I don't get is why these models break down as soon as the label "property" comes out. Where are these secret models anyway?"

Which theoretical models? He has plenty of case studies showing that certain models can be successfully utilized, unless they do not fit your standard of your "real-life" in which case, you don't have to be here.

Also, with all this theoretical debate, I don't understand how this makes him "intellectually dishonest"? Unless you're still angry at the theoretical debate.

"Courts, including unanimous Supreme Court decisions calling copyrights property. Congress. The executive branch. The commentary. Seems like the member nations of WIPO don't mind the moniker. Even Mike when he's being honest and answering the question of whether copyright is "property" as that word is used in the Constitution. For an academic look at how copyright has been recognized to be property, I recommend this: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=934869"

"A survey of federal court decisions between 1943 and 2003 reveals an exponential increase in the usage of the term. As noted by Samuelson (398) and Cohen (379), within the spheres of industry, culture, law, and politics the word “property” implies a broader scope of rights than those associated with a grant of limited monopoly."

"Yep, people on both sides of the debate use words for effect. Some more than others."

Than why do you complain about it and call it "intellectual dishonest"?

"If the situations are theoretical, then they do not represent the real world nearly as well as actually looking at the real world meaning of copyright and property."

Because it helps people to get a better viewpoint of how these things relate to the real world.

Like I said, if you're so mad about this "fantasizing" no one's making you be here to yell about it.

"
I'm all for looking at the competing theoretical models. Mike can make his case for why his model is better than the hundreds of other such models. In the meantime, those models are just that, models."

That's what he's doing, but you don't perceive it that way and that's the biggest separation between the people who support Techdirt and the people who don't

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

anyone who ignores those non-property like attributes -- as AJ has done consistently -- is building a strawman by ignoring economic realities in the fundamental attributes of the market.

Please name even one single "non-property like attribute" that I have "consistently" ignored. You can't name even one, because you are completely making that up to discredit me. Prove it, Mike. I won't hold my breath.

I recognize that copyright is not naturally excludable or rivalrous. I also recognize that the law makes it excludable. Do your secret economic models take that into account? Where are these models anyway? And why do they break down when the label "property" is used? Are your models really that sensitive to labels on things vs. their actual de facto/de jure nature?

I noted that for the purpose of the due process clause, some courts have judged copyright to be property in the legal sense.

Good, so you admit that in a very real context where it actually matters whether or not copyright is actually "property," "some courts" have said that it is. I assume you know of none that have said it's not, right? THIS IS A WATERSHED MOMENT, FOLKS. MIKE ADMITS THAT UNDER THE CONSTITUTION COPYRIGHT IS "PROPERTY."

What I have never said is that copyright is property in any real or economic sense.

Yes, in a theoretical economic model, you should properly look at the fact that it's nonrivalrous. I'm still waiting to see how your model handles the excludability issue. Where are these models? And why is your model better than all the other theoretical models?

And more importantly, just because in these secret models you focus on how copyright is not like tangible property, why do you insist that in the real world where copyright actually is excludable and considered to be "property" that we use your theoretical definitions (that you can't be bothered to even prove exist)? Don't you see how silly it is to pretend like your secret theoretical meaning of the word should control how we use the word? And don't you think it's silly to pretend like there aren't other contexts all around you where people freely think of it as property? What makes your secret model so special?

That he then uses it to argue a meaningless point

It's not meaningless. Whether copyright is property matters very much to you, obviously. What you can never explain is why these secret models that don't actually represent the real world that we actually live in matter so much when people discuss "property." It's not naturally rivalrous and excludable. Everyone knows this. You pretend like your secret economic insight sees things that none of us can see. We all see that too, Mike.

Don't forget to please name even one single "non-property like attribute" that I have "consistently" ignored. I await your answer.

Re: Re: Re: Re: Re: Re: Re: Re: Re:

Good points.

I think there needs to be balance and I'm also not a huge fan of completely free market, but I can see where the market now is going to the extreme opposite side of the spectrum from a free market, and it's because these companies are able to manipulate the system.

The other problem is that Hollywood is the only company in town offering access to the media content people want. One source, and they can keep upping the fees each year, effectively stifling growth in companies like Pandora and Netflix.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Which theoretical models? He has plenty of case studies showing that certain models can be successfully utilized, unless they do not fit your standard of your "real-life" in which case, you don't have to be here.

None of that shows though that copyright must not be called "property." What theoretical model gets so hung up on labels rather than looking at the actual nature of the right at issue? What model precisely would fall apart?

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

"None of that shows though that copyright must not be called "property." What theoretical model gets so hung up on labels rather than looking at the actual nature of the right at issue? What model precisely would fall apart?"

So Mike needs to admit copyright is property, but his models cannot? You're starting to sound like OOTB.

Those last two questions are for you to answer.

You seem to want to debate, yet you criticize Mike for debating with theoretical models.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

He can define monkeys to be rainbows in his secret models. That doesn't change the fact that in the real world monkeys are not rainbows.

You seem to want to debate, yet you criticize Mike for debating with theoretical models.

If he wants to use his models to suggest changes to copyright, I say "Go for it." Seriously. I think Mike has great ideas. But he should stop pretending like somehow these secret models implode if copyright is called "property" therein. The labels shouldn't matter to the models. What matters is whether it's excludable or rivalrous. Period. He should admit that in the real world copyright is commonly thought of as "property." His secret models can call things whatever he wants, but to pretend like those models control how the real world actually uses the term is silly--it doesn't.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

The other problem is that Hollywood is the only company in town offering access to the media content people want. One source, and they can keep upping the fees each year, effectively stifling growth in companies like Pandora and Netflix.

At some point there will be enough content outside the Hollywood system that it will be a non-issue. That's what the revamped MySpace is counting on.

The fact that people still want what Hollywood offers kind of reinforces the idea that Hollywood continues to produce content that independent artists don't. I'm not sure why that continues to be the case, but whenever I ask startups why they don't just offer content they can get for free, they say they need to offer everything.

The fact that companies say they need Hollywood content reinforces Hollywood's belief that they have content people want and therefore they want to get something for it. In other words, this situation tells Hollywood there is demand for their content, so they are trying to monetize it just like the startups are trying to monetize what they do. Everyone is trying to make a buck. In contrast, I say, "Why does anyone need to make a buck? Let's figure out how to reduce the cost of everything so everyone can survive on a minimal amount of money."

Re: Re: Re: Re: Re: Re: Re: Re: Re:

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

" THIS IS A WATERSHED MOMENT, FOLKS. MIKE ADMITS THAT UNDER THE CONSTITUTION COPYRIGHT IS "PROPERTY.""

There ya go, you've won.

Now you can go back to being somewhat constructive.

It matters because Mike is admitting that in a real world, concrete situation where it actually matters whether copyright is considered to be "property" it actually is "property." This is 180 degrees the opposite of the claim that he is trying to make, which is that in his secret models that are really sensitive to how things are labeled, it's not "property." Which one actually matters more in the real world? The Constitution and the courts that determine real things in real life, or Mike's secret models that compete with hundreds of other models and don't actually determine anything real?

Re: Re: @joe

You call it theft of services, I call it giving away services without securing payment because that is exactly what publishers do. They pay artists for the service of creating the art. Then, they try to resell that labor in the form of infinite copies without securing payment prior to distribution. They foolishly put it out there, knowing full-well that people will be able to make copies and then piss and moan that they're stealing "property" when they're just taking advantage of a publisher's stupidity to give away the milk before they buy the cow.

If they actually did offer it up as a service, they'd have far fewer headaches dealing with people making copies, but they still can't get over the idea of anyone getting something for free. Getting something for free, in their minds, is losing money they are entitled to. Even if they get every penny they ask for up front before they distribute, they would still bitch like spoiled children that someone got something for free and feel they were entitled to getting paid for that.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Please name even one single "non-property like attribute" that I have "consistently" ignored. You can't name even one, because you are completely making that up to discredit me. Prove it, Mike. I won't hold my breath.

As I have stated consistently and repeatedly, the fact that it is non-scarce and non-rivalrous creates non property like attributes in any sensible economic analysis. As to why, I should think that it is obvious. But the difference is that the supply of a non-rivalrous, non-excludable good is, by definition, infinite, and the very core of economics is the intersection of supply and demand. When your supply curve is infinite, it obviously behaves entirely differently than a limited supply curve.

I recognize that copyright is not naturally excludable or rivalrous. I also recognize that the law makes it excludable.

Which, of course, is the point. The law *making it* excludable is the ARTIFICIAL scarcity that is induced upon it, creating a *NON-FREE MARKET*. It is the same point raised in the original article, and the entire point that we are making. The fact that you need to place specific legal limitations to seek to create an artificial scarcity where none exists in nature is the direct economic inefficiency addressed in the article.

The adding of an artificial scarcity is why it is not property in the economic sense, because you are FORCING fake scarcity upon it, whereas that does not happen with property.

Good, so you admit that in a very real context where it actually matters whether or not copyright is actually "property," "some courts" have said that it is. I assume you know of none that have said it's not, right? THIS IS A WATERSHED MOMENT, FOLKS. MIKE ADMITS THAT UNDER THE CONSTITUTION COPYRIGHT IS "PROPERTY."

This is, of course, neither new, nor a watershed moment. I have made it clear for quite some time that it has both property-like attribute and non-property-like attributes. I have done so in this very post, and in the last post where you tried to go through this exercise. So, getting me to say the exact same thing I've said for years is neither enlightening, nor is it new, nor is it a watershed.

This, I believe, is one of the reasons why trying to have this discussion with you is so tiresome. You insist I say things I did not say, and then pretend when I repeat what I've said that I have somehow said something new.

Yes, in a theoretical economic model, you should properly look at the fact that it's nonrivalrous.

No, we are not talking about "theoretical economic models." We are talking about economics itself -- and how any non-rivalrous, non-excludable good acts under those conditions, and it is exactly *not* like property. Why? Because the supply itself is infinite, among other things. The idea of forcing a property-like right there is nonsensical. It is the broken window parable writ large. Taking an efficient market and forcing an inefficiency on it solely for the sake of adding economic friction and tolls. It is the same thing as adding an airright or a pizzaright.

I'm still waiting to see how your model handles the excludability issue.

Huh? Exactly as described in this very post with the airright. As soon as you impose an artificial scarcity on a non-scarce good, you create tolls (or economic rents) in which certain people are poised to profit from the inefficiency. It creates *a* market, but not a free market in any sense of the word, nor an efficient one. Quite the opposite, it create an inefficient market around that friction point. And, by definition, it does so in a way that limits the larger market.

And more importantly, just because in these secret models you focus on how copyright is not like tangible property, why do you insist that in the real world where copyright actually is excludable and considered to be "property" that we use your theoretical definitions (that you can't be bothered to even prove exist)?

I don't know if I just didn't explain myself clearly or if you just aren't particularly familiar with economics, but I believe I did explain this fairly clearly in the original post. Of course when you create an inefficiency by limiting supply, you will create a market around it. As Thomas Macauley famously said: "the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad." You increase the price drastically by limiting the supply.

That is, by its nature, what copyright does. Now, you may argue that such is a worthy setup for the market. But to argue that it is a free market for "property" is misleading in the extreme, because the government has, by choice, limited the supply. It has "made them dear."

Don't you see how silly it is to pretend like your secret theoretical meaning of the word should control how we use the word? And don't you think it's silly to pretend like there aren't other contexts all around you where people freely think of it as property? What makes your secret model so special?

Again, I really don't see what you are arguing here. It seems you want to focus on the legal definition of the word, which is meaningless. Economics does not treat the legal definition of the word with any care in the world. We can call air "property" and economics would not treat it like property. What you call it has no impact on the economics. All that matters is its fundamental properties.

It's not meaningless. Whether copyright is property matters very much to you, obviously.

Yes, it matters in economics. The legal definition matters not in economics. We can CLAIM that a 1 lb. weight is weighless, but when we let go of it, gravity pulls it down. Legally defining it as weightless makes no difference.

Similarly, legally defining something as "property" when it is not, economically speaking, makes no difference on the economics. That is my point, as it has been all along, and as I believe I have explained to you more than once.

So, we seem to be in agreement here, except for one point. We agree that content is neither rivalrous nor excludable, but that copyright imposes such an artificial excludability upon it. We agree that this creates *a* market, though you have made no statement on the efficiency of the market. We agree (and have all along) that in legal contexts, copyright has some aspects of property, and thus can be considered property in some areas. We disagree on the areas where copyright is not considered property (for example, copyright is generally not considered "community property" such as in the case of a divorce, and standard property rights have no such thing like the termination rights of copyright law... but we'll leave that aside).

All that we really disagree about is the impact of this. You think that the fact that, in some cases, under some definitions, that copyright can be considered property has an impact on the economics discussion. I contend that it does not. Not only do I contend that it does not, but I further contend that this is a non-arguable point, because it is fact.

I believe that I have explained all of this previously, though perhaps not clearly enough for you or in the context you desire. Hopefully, this settles the issue, though I fear that it will not. Either way, for anyone else exploring the issue, I hope that this post may be useful in understanding the details.

Tragically, your focus on the meaningless aspect has meant that almost none of this conversation has focused on the part that actually matters: the economics. That is unfortunate, though was, perhaps, your intention all along.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Oh, and just to clarify... since you still seem to be going off on the Hume thing, despite the fact that I clearly did not claim that "Hume's definition is controlling," the quote from Macauley that I use is not because he is the citation or origination of it, but because what he states is a simple *fact* of nature, and he just stated it eloquently.

Re: Re: Re: Re: Re:

Microsoft never had a monopoly on the web browser. The first was called WorldWideWeb. The next was Mosaic (later called Netscape), and Internet Explorer came out a couple years later. I have never been a fan of IE, and only ever used it to find and install a different browser. (and the forced use for Windows Updates)

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Joe, I have to say that this is the most ridiculous argument you've ever put forth. And that's saying something.

Copyright is no more a part of a free market than farm subsidies or minimum wage laws. It's true, government-granted monopolies are sometimes treated as property rights under statute - as is the case with liquor licenses or taxi medallions. But just because they're modeled after property in the statutes, does not mean that they're property in any other context.

And you're simply wrong if you think copyright isn't fundamentally economic in nature. When the Supreme Court said that copyright is "the engine of free expression," they were making an economic argument. When they said "The immediate effect of our copyright law is to to secure a fair return for an 'author's' creative labor," they were making an economic argument. When a fair use analysis examines "the effect of the use upon the potential market," they are making an economic analysis. Furthermore, copyright is almost always referred to as a "monopoly," e.g.: "The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors." To claim that copyright has nothing to do with economics is exactly as idiotic as claiming that California's fixing of electricity prices has nothing to do with economics.

Hell, even your "go-to guy" for thinking that copyright is a natural right - Locke and his "labor theory" of property - was fundamentally making an economic argument. (Or at least proto-economic; many scholars think that Locke's treatise was trying to lay the philosophical groundwork for Adam Smith-style laissez-faire capitalism.) Locke's property rights were ultimately grounded on the efficient allocation of resources - the basis of economic theory.

You are correct that copyright is merely a statutory right. You are wrong in thinking that this statutory right is something more than a government-granted monopoly right. It is not. And the reason it is granted, at least as far as copyright holders are concerned, is solely for economic reasons.

Of course, the legal reasons are based on a wholly theoretical rationale. Copyright exists because it theoretically provides an incentive to create and distribute works - not because any study, anywhere, actually found that the monopoly will actually result in the creation and distribution of works. Economics is an empirical science; it bases its theories on hypotheses that can be tested with data derived from empirical evidence. In contrast, the law is not. It is based on legal opinion, not on empirical evidence. It is wholly theoretical - and, usually, the statutes are enacted due to the political desires of legislators. Economics, by its empirical nature, represents the way the real world works. The law has nothing whatsoever to do with legitimizing real-world behavior - and does not claim to.

It's understandable that you, as a law student, would believe that the letter of the law is the most important thing in life. But it's important that you realize it's not. Everyone makes economic decisions every day. Few people make any conscious decision to obey the law. And even if they don't, economics wins over the law every time. Some hippie douche buying a bag of weed is not obeying the law; but when he decides whether to pay $40 for that bag of weed or not, he's making an economic decision.

Re: Re: Re: Re: Re: Re: Re: Re: Re:

Spider-Man, by contrast, is enmeshed in a web of legal obligations that stifle creativity. Sony Pictures and Sony Pictures alone may make Spider-Man films, and unless they release them very frequently, they’ll lose this lucrative monopoly and the rights will revert back to Marvel. Decisions about which stories get told are driven by intellectual property considerations rather than dramatic ones. Peter Parker can’t appear in an Avengers film, and Iron Man can’t appear in a Spider-Man movie because the rights belong to different studios.

Re: Re: Re: Re: Re: Re:

"You might say that stifling ponzi schemes is worthwhile but that means that if I wanted to start a ponzi scheme business as competition to non-ponzi scheme businesses I am not allowed to. And if I wanted to buy into one I also am not allowed to."

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

So, we seem to be in agreement here, except for one point. We agree that content is neither rivalrous nor excludable, but that copyright imposes such an artificial excludability upon it. We agree that this creates *a* market, though you have made no statement on the efficiency of the market. We agree (and have all along) that in legal contexts, copyright has some aspects of property, and thus can be considered property in some areas. We disagree on the areas where copyright is not considered property (for example, copyright is generally not considered "community property" such as in the case of a divorce, and standard property rights have no such thing like the termination rights of copyright law... but we'll leave that aside).

I appreciate the thoughtful reply. Yes, we agree that it is not naturally rivalrous or excludable, and that the law makes it excludable. You say I have "no statement on the efficiency of the market." My reply is that your supposition seems to be that the market should conform to some theoretical model where inefficiency is minimized. As I have said many times, there is command that copyright must be maximized. You just want to maximize functions. That's fine, but don't pretend like they must be maximized. The Constitution says "promote the progress," it does not say "maximize some function that some economists agree is the proper model but that many other economists don't agree is the proper model."

Of course it's not a maximized function for economic modeling. It's intentionally artificially scarce. It's intentionally not a maximized function by design. You're ignoring WHY we intentionally set up this inefficient system. That's fine if you want to disagree with whether progress is being promoted in the way that you think it should be, but it's bootstrapping to argue that we should do it differently because it's maximally efficient to just not have copyright. Take a step out of theoretical land and come back to the real world where we intentionally make it an inefficient, artificial scarcity for a reason. Disagree with that reason, but don't pretend like the inefficiency is reason enough to change course. That's not a strong argument.

The short of it is though that I just don't understand why because in some economic model it's not property we should pretend that in the real world (as in the law that actually defines copyright and the Constitution that protects our property interests in it from government intrusions) it's not property. It seems a bit strange to claim that our everyday use of the word should be governed by a theoretical use of the word that some economists subscribe to because some economists want to maximize functions that don't even need to be maximized and that even if maximized there'd be another group of economists who disagreed. You say I'm not in the real world. I'm sorry, but this theoretical economic modeling is not the real world. In the real world, copyright is defined by laws, not economic models.

What you're leaving out is all the nuance. You subscribe to a school of economics, right? Which school are you in? I think it's important for you to acknowledge that your views are but those of one camp of economists, and there are many economists who think you're wrong. You make it sound like economics is a hard science and there is but one economic view and you represent that. That's not how it works. I wouldn't be the least bit surprised to find that your views are the minority view within economic circles. Your views are certainly the minority view in issues of law. That's fine that you believe what you believe, but don't pretend like your views are necessary the right ones, especially if they're not even the majority consensus.

Here's an academic paper mentioned in today's Copyhype article: http://personal.bgsu.edu/~faracid/ip/scarcity.pdf The paper starts out: "There is a common view, dating back at least to Hume (1739), that property rights presuppose scarcity—i.e., that a good’s being scarce is a condition of its legitimately being property." That's just what you said--there can be no property without actual scarcity because property is only about resolving conflicts between competing parties. The paper then goes on to argue that that view is wrong. It's an interesting read. It goes to show that there is disagreement amongst the different camps. It is suggested that your view that property necessarily presupposes scarcity is not the majority view. I don't know if that's true, but as I said, it wouldn't be surprising given other views of yours that are not majority views.

Anyway, I have a lot more to say, but I'm pressed for time. I really do appreciate you taking the time to discuss this with me. I mean it. I think we're actually getting somewhere. The reason I give you such shit is not just because I hate your guts and want to embarrass you, but it's also because I respect you and am genuinely interested in your points of view. Let's have productive discussions like these more often.

Re: Re: Re: Re: Re:

"I'm still waiting to hear how it stifles competition?"

The Promo Bay, which promoted independent culture, was blocked in the UK on copyright grounds, even though it wasn't infringing and without any due process. This was caused by the major content providers with the obvious intent to stifle competition from independent artists.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

You make it sound like economics is a hard science and there is but one economic view and you represent that.

Economics is definitely evolving. I could cite so many articles, but won't. However, these two caught my attention this week.

Is Rush Limbaugh's Country Gone? - NYTimes.com: "Not only does a plurality (49-43) of young people hold a favorable view of socialism — and, by a tiny margin (47-46), a negative view of capitalism — so do liberal Democrats, who view socialism positively by a solid 59-33; and African Americans, 55-36. Hispanics are modestly opposed, 49-44, to socialism, but they hold decisively negative attitudes toward capitalism, 55-32."

Saving Economics from the Economists - Harvard Business Review: "It is time to reengage the severely impoverished field of economics with the economy. Market economies springing up in China, India, Africa, and elsewhere herald a new era of entrepreneurship, and with it unprecedented opportunities for economists to study how the market economy gains its resilience in societies with cultural, institutional, and organizational diversities. But knowledge will come only if economics can be reoriented to the study of man as he is and the economic system as it actually exists."

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

"The short of it is though that I just don't understand why because in some economic model it's not property we should pretend that in the real world (as in the law that actually defines copyright and the Constitution that protects our property interests in it from government intrusions) it's not property."

I'll let Mike reply on his own, but I would phrase it thus: because economic truth came first.

Economics is describing, not prescribing, what actually is. It does not create anything, it only describes what is occurring and what IS. The law, in this case, is the exact opposite. It is creating a system where copyright is property when it previously was not. As such, the onus is on those creating something to demonstrate that the creation is the best way, or we default back to what WAS before the creation.

For those that think the theory behind copyright in today's age is flawed, that is why the economic thought is paramount, because it simply IS, rather than what the law CREATED.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

The End of Rational Economics - Harvard Business Review: "We are now paying a terrible price for our unblinking faith in the power of the invisible hand. We’re painfully blinking awake to the falsity of standard economic theory—that human beings are capable of always making rational decisions and that markets and institutions, in the aggregate, are healthily self-regulating. If assumptions about the way things are supposed to work have failed us in the hyperrational world of Wall Street, what damage have they done in other institutions and organizations that are also made up of fallible, less-than-logical people? And where do corporate managers, schooled in rational assumptions but who run messy, often unpredictable businesses, go from here?"

Right idea, wrong product.

What Microsoft had was a monopoly on consumer operating systems. This existed because of the interconnected nature of software and the need for different programs to communicate.

This tends to encourage the creation of a single super-brand of operating system. If someone owns that super-brand, then they can use that ownership to bypass the free market.

Microsoft did just that with IE. The state of the browser market was an example of Microsoft abusing it's monopoly.

They first got into trouble for bulk licensing deals that had hardware vendors paying Microsoft for every machine sold regardless of whether or not it had MS-DOS on it. This helped kill off DOS replacements and completely different alternatives.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

You say I have "no statement on the efficiency of the market." My reply is that your supposition seems to be that the market should conform to some theoretical model where inefficiency is minimized.

Whether or not you or I believe that inefficiency *should* be minimized, if we are talking about "free market capitalism" (which, you might recall, had been the entire point of this post) then that point does absolutely matter, because that is the key nature of free market capitalism.

Of course it's not a maximized function for economic modeling. It's intentionally artificially scarce. It's intentionally not a maximized function by design. You're ignoring WHY we intentionally set up this inefficient system.

Again, you are arguing something entirely unrelated. The entire question here is whether or not it's a free market. You're agreeing with me that it's not.

Not sure why you're still arguing then.

Of course it's not a maximized function for economic modeling. It's intentionally artificially scarce. It's intentionally not a maximized function by design. You're ignoring WHY we intentionally set up this inefficient system. That's fine if you want to disagree with whether progress is being promoted in the way that you think it should be, but it's bootstrapping to argue that we should do it differently because it's maximally efficient to just not have copyright. Take a step out of theoretical land and come back to the real world where we intentionally make it an inefficient, artificial scarcity for a reason. Disagree with that reason, but don't pretend like the inefficiency is reason enough to change course. That's not a strong argument.

Again, you are agreeing with the point: that it's not a free market.

We agree -- contrary to your claims here -- that once you admit that it's not a free market, then it's entirely appropriate to discuss what is the proper setup of the market. I have not argued we need to maximize efficiency (again, you seem to be pretending I said something I didn't -- and I still don't understand why you do this).

This post is about one thing: is copyright free market capitalism? I explained why it's not... and your response is to attack... while agreeing with that point, and then pretending I said that it needs to be free market capitalism.

Not sure why, but I would urge you to stop jumping to such conclusions. We actually agree (again) that the important thing is to look at what the program is trying to accomplish and why. It's why my position has always been about adding more data (contrary to your assertion, I'm entirely about "living in reality") about what sort of system is *best*, not about theory.

That's just what you said--there can be no property without actual scarcity because property is only about resolving conflicts between competing parties.

No, that's not what I said. I said that it has SOME property like attributes. And others that are not.

Once again: I tried to engage with you. And your response is to continually insist I have said stuff I have not.

I know, I know. I should have learned.

That's just what you said--there can be no property without actual scarcity because property is only about resolving conflicts between competing parties.

If we are to get somewhere, really, you have to stop assuming I say stuff I have not. It's ridiculous, frankly. You think you've got me figured out and all it seems to mean is that you see everything I say in this totally false framework, and thus you pretend I say stuff I have not.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Economics is describing, not prescribing, what actually is. It does not create anything, it only describes what is occurring and what IS. The law, in this case, is the exact opposite. It is creating a system where copyright is property when it previously was not. As such, the onus is on those creating something to demonstrate that the creation is the best way, or we default back to what WAS before the creation.

For those that think the theory behind copyright in today's age is flawed, that is why the economic thought is paramount, because it simply IS, rather than what the law CREATED.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Respect would mean not misrepresenting me so consistently.

I don't ever consciously misrepresent you. If I'm purporting to state your position and you think I'm getting things wrong, just realize that it's an honest mistake and correct me under that assumption. This might save us both some grief. Appreciate the response, though.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

I believe an argument could be made that 'to promote the progress' implies 'to maximally promote the progress'.

If you pass law A that promotes progress, and there exists law B that promotes it further, then you are within your mandate to then pass law B as well. This follows with laws C, D, and E that each promote progress further than the one proceeding, until you have no more laws to pass that promote the progress further than existing laws. Thus, you have promoted the progress maximally.

This is important, and why the argument/debate exists as to whether copyright, in its current form, Maximally promotes the progress. If we could change the form of copyright, either by reducing terms, abolishing it entirely, and even extending terms and expanding it such that the progress is thus promoted further, then we are Within Our Constitutional Mandate to change the form of copyright.

Essentially, the only thing we can not do under the Constitutional mandate to promote the progress is to pass a law to retard the progress of Science and the Useful Arts. (Perhaps poor word choice...) This is why we look at empirical evidence to see if the passage of copyright expansion has retarded the progress. If it has, then we are OUT of our Constitutional mandate, and it MUST change.

(I'm not 100% sure Mike is making this same argument, but it COULD be made.)

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

I believe an argument could be made that 'to promote the progress' implies 'to maximally promote the progress'.

You can make that argument, but it's legally a nonstarter--meaning that in real life, while talking about copyright as it actually exists, it will get you nowhere. The Supreme Court has made it perfectly clear that "promote the progress" means whatever Congress says it means. And in no way does it mean that some function must be maximized. Prof. Lessig tried that argument in Eldred, as argued in the famous amicus brief from the economics professors, and the Court rejected it outright.

Where the rubber hits the road is in what Congress defines copyright to be. That's reality. The actual rights that copyright represents are what Congress say they are. All of these competing economic models that Mike is pointing to are a bunch of intellectual masturbation. They're interesting, but they do not actually represent what copyright actually is.

It's cracking me up that some are pretending like some theoretical model that some economists agree with but that many others don't somehow represents what's real, while the law--which actually in real life defines copyright--is somehow theoretical and not real. Copyright is a creature of statute, not a creature of some economic model.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

I believe an argument could be made that 'to promote the progress' implies 'to maximally promote the progress'.

What I am arguing is that global economics has gotten so complex that we can no longer pass laws piecemeal. Changing copyright laws by themselves does not guarantee that progress will be achieved for the greatest number of people.

Dmytri Kleiner's Critique of Peer Production Ideology - P2P Foundation: "So long as commons-based peer-production is applied narrowly to only an information commons while the capitalist mode of production still dominates the production of material wealth, owners of material property will continue to capture the marginal wealth created as a result of the productivity of the information commons. Whatever exchange value is derived from the information commons will always be captured by owners of real property, which lies outside the commons. For Peer Production to have any effect on general material wealth it has to operate within the context of a overall system of goods and services, where the physical means of production and the virtual means of production are both available in the commons for peer production."

Re: Re: Re: @joe

To clarify, if you believe that another's property can be "created" by rearranging your own property, then surely you must believe that rearranging this property again is comparable to the destruction of property that is not your own (a seemingly more outrageous crime!).

You're going to have to give me something more concrete than that. I think I understand what you're getting at, but I'm not sure.

Re: Re: Re: @joe

I don't think I'm the person to have this conversation with. I took one semester of economics as an undergrad. I spent two days reading the text right before the exam, took the exam, then forgot it all. Sorry, but you'd have to explain things to me like "subjective marginal utility" means.

Re: Re: Re: Re: @joe

I don't think I'm the person to have this conversation with. I took one semester of economics as an undergrad. I spent two days reading the text right before the exam, took the exam, then forgot it all. Sorry, but you'd have to explain things to me like "subjective marginal utility" means.

Well, I guess that explains why you keep wading into *economics* discussions and trying to turn them into semantic discussions about *legal* definitions, despite that having zero impact on the economics.

Re: Re: Re: Re: Re: @joe

Well, I guess that explains why you keep wading into *economics* discussions and trying to turn them into semantic discussions about *legal* definitions, despite that having zero impact on the economics.

I absolutely knew you were going to chime in with some childish put down. I knew it the moment I hit "submit." You are so terribly predictable. I put my cards on the table. I always have. I don't pretend to be what I'm not. I admit that economics is not my strong suit. That doesn't mean that I can't recognize that your economic definitions aren't relevant in the real world.

I understand that in your theoretical economic models you choose to define property a certain way. There are many other economists who think you're totally wrong to use that definition, and they use a different definition. Go ahead and run your models, but don't pretend that they are real. If every theoretical model of the economics of copyright were to disappear tomorrow, copyright would still remain exactly the same as it is today. Why? Because your models are just models. Copyright is a legal issue if there ever was one. Take away the legal parts and there is no copyright.

I understand that you think the legal meanings have zero impact on your theoretical models that compete with many other theoretical models, every economist thinking all the other economists are wrong. Have fun with that mental gymnastics. But in the real world, talking about actual copyright as it actually exists and affects real people, it is a legal issue. Copyright is defined by the law, not your meaningless models that could disappear and have no effect on copyright.

You yourself have mentioned an example of where it actually matters to a person as to whether copyright is property or not, and that is in the context of the Due Process Clause. There, you have admitted that copyright is property. So we can easily imagine an actual situation where in a real person's life it would actually matter whether copyright is property. If they were deprived of their copyright interests without due process of law, they could argue in court that since copyright is property they should have gotten due process. In that situation, it actually would matter in an actual person's life whether copyright is property.

You have not mentioned even one situation where how you define property in your theoretical models that could disappear tomorrow actually affects an actual person's life.

I think your intellectual move to say that we shouldn't call it property because in your theoretical models that other economists think are totally wrong it's not property. Who cares what your models say? No matter what your models say, it has no bearing on copyright as it actually exists and as it actually applies to actual people's lives. I don't have to be able to say intelligent things about marginal costs or dead weight losses to know that it's just a bunch of academics arguing about theories. The law, on the other hand, deals with the actual rights that people have and their enforcement. It actually affects actual people in an actual way.

So your ploy to say "it's economics, so nothing else matters!" fails to address the fact that it's your economics that don't matter. It fails to address the fact that tons of other economists think your models are shit. You're just trying to ignore the reality that it is considered to be property in many contexts that are actually relevant to people's lives. And let's be honest, you're trying to get people to not call it property in every context, not just with theoretical economic modelling. You don't think it should ever be called property ever, right?

As an aside, I think it's strange in your other article you're citing Prof. Bell as saying that copyright is not subject to a Takings Clause claim. If you admit that it's property under the Due Process Clause, then why wouldn't it be property under the Takings Clause too? Do you really think the word property, which is used twice in the Fifth Amendment, means different things each time?

What's he making are normative, minority-view arguments, and you're presenting them as descriptive, majority-view arguments. I often wonder if you do this intentionally. Do you understand the difference? It appears from the outside looking in that you just subscribe to whichever argument you like the result of without noting that it's normative/descriptive or minority-view/majority-view. A lot of the reason I think you're intellectually dishonest is because you just cite the views you like but you don't admit it when those views are considered to be "outside the box." Given your own "outside the box" views, it's not surprising that you don't want to go there, but it still seems like the lie of omission.

It's OK to cite dissenting views. But it's intellectually dishonest to not note that they are not the majority view.

Re: Re: Re: Re: Re: @joe

Well, I guess that explains why you keep wading into *economics* discussions and trying to turn them into semantic discussions about *legal* definitions, despite that having zero impact on the economics.

This Isn't Supposed to Be About Semantics

I'm going to re-post something I posted late on the previous article because it seems to fit here as well:

If you get hung up on various definitions of "property," that is, an argument purely over semantics, then you are sidestepping the whole point of what's being talked about. By the most commonly understood definitions of "property" copyright isn't property at all because it's about an intangible, practically infinite, non-rivalrous and non-excludable thing. However, there are other definitions that would consider copyright as property. None of that matters. What matters is the reality of the situation.

The point is that you cannot make an intangible set of words or ideas which are not inherently scarce, rivalrous, or excludable into something scarce, rivalrous, and excludable just through pretense or calling it by a certain term. That was apparent by what Mike wrote, and was correct by certain common definitions of the term "property," and consistent with the way the term was being used by his opponents (otherwise they were talking about semantics and their arguments were irrelevant to copyright reform). Bringing up that other definitions for the term "property" exist has no real bearing on the point.

Just to be clear, I think that reasonable copyright terms may be useful. Trying to equate copyright to tangible property in order to equate people who want to limit its terms as thieves is disingenuous at best.

On May 2nd, according to the Journals of the Continental Congress, “The committee, consisting of Mr. [Hugh] Williamson, Mr. [Ralph] Izard and Mr. [James] Madison, to whom were referred sundry papers and memorials from different persons on the subject of literary property, being persuaded that nothing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius, to promote useful discoveries and to the general extension of arts and commerce,” moved for a resolution that recommended the States pass statutes protecting copyright.

Copyright has been commonly considered to be property from early on. It was once called "literary property," but today is called "intellectual property." Note the word "property."

The point is that you cannot make an intangible set of words or ideas which are not inherently scarce, rivalrous, or excludable into something scarce, rivalrous, and excludable just through pretense or calling it by a certain term.

Title 17 makes copyright excludable. It's not de facto excludable, but it is de jure excludable. Note the word "excludable."

Re: Re: Re: Re: Re: Re: @joe

I appreciate the honesty.

Some rambling...

Though it is important to go over economic definitions (subjective marginal utility, etc.) I think it'd be more beneficial to briefly go back over my point.

At a certain time, the Labor Theory of value was the majority view concerning value amongst economists (from Adam Smith to Marx, etc.). The Labor Theory of value saw value as something intrinsic to resources, as if there was some measurable, magic 'labor' dust living inside of a given resource. (Sounds ridiculous right?)

Many formulas, theories, etc., were based upon this defective theory. Because economists and others extended upon this theory did not make this theory and those extensions any more correct even if they were writ into law.

The Marginalist Revolution, lead by what is now known as the Austrian school of economic thought (which many here ascribe to -- since you were wondering), finally moved us away from this defective theory of value.

At the time and for some time after that, this realization concerning value was in the minority.

(They also came to realize that there are immutable economic laws that can be applied to man at any time and any place.)

The Austrian school of economic thought made the most progress in solving the paradox of value over a century ago, and they (but not limited to) are now engaged in solving the paradox of property.

Like value, there is no magical 'property' dust living within resources. Nor can this 'property' dust be conjured about by rearranging resources.

If I were to burn a disc, that disc is still just a piece of plastic. There is nothing else going on there. To say there is, is to say that you believe in some kind of mysticism... And I think it is quite dangerous for the law to support this mysticism.

---

My personal theory about property and property rights is that, during human development, we became aware that avoiding violence was a good way to preserve oneself in an environment characterized by scarcity.

Rules and standards concerning scarce resources came about to resolve conflict as a result of this scarcity. Private, individual property came to be the most effective framework for facilitating peaceful exchange of scarce resources (free, voluntary exchange). (The further away we move from this framework, the more conflicts we see. – public property, etc.)

This is why property (correctly defined and understood) and private property rights are so dear to Capitalism. Anything that undermines these principles (like copyright and IP), is not Capitalism and has no place in a Capitalist system.

Re: Re: Re: Re: Re: Re: @joe

I appreciate the honesty.

Some rambling...

Though it is important to go over economic definitions (subjective marginal utility, etc.) I think it'd be more beneficial to briefly go back over my point.

At a certain time, the Labor Theory of value was the majority view concerning value amongst economists (from Adam Smith to Marx, etc.). The Labor Theory of value saw value as something intrinsic to resources, as if there was some measurable, magic 'labor' dust living inside of a given resource. (Sounds ridiculous right?)

Many formulas, theories, etc., were based upon this defective theory. Because economists and others extended upon this theory did not make this theory and those extensions any more correct even if they were writ into law.

The Marginalist Revolution, lead by what is now known as the Austrian school of economic thought (which many here ascribe to -- since you were wondering), finally moved us away from this defective theory of value.

At the time and for some time after that, this realization concerning value was in the minority.

(They also came to realize that there are immutable economic laws that can be applied to man at any time and any place.)

The Austrian school of economic thought made the most progress in solving the paradox of value over a century ago, and they (but not limited to) are now engaged in solving the paradox of property.

Like value, there is no magical 'property' dust living within resources. Nor can this 'property' dust be conjured about by rearranging resources.

If I were to burn a disc, that disc is still just a piece of plastic. There is nothing else going on there. To say there is, is to say that you believe in some kind of mysticism... And I think it is quite dangerous for the law to support this mysticism.

---

My personal theory about property and property rights is that, during human development, we became aware that avoiding violence was a good way to preserve oneself in an environment characterized by scarcity.

Rules and standards concerning scarce resources came about to resolve conflict as a result of this scarcity. Private, individual property came to be the most effective framework for facilitating peaceful exchange of scarce resources (free, voluntary exchange). (The further away we move from this framework, the more conflicts we see. – public property, etc.)

This is why property (correctly defined and understood) and private property rights are so dear to Capitalism. Anything that undermines these principles (like copyright and IP), is not Capitalism and has no place in a Capitalist system.

Re: Re: Re: Re: Re: Re: Re: @joe

Re: Re: Re: Re: Re: Re: Re: Re: @joe

I tried to start Faraci's paper you referenced earlier...

“Certainly, a dispute could still arise; I might just decide I don’t like the idea of anyone else having some nonscarce good. But it seems that disputes of this kind can be justly dealt with without the introduction of property rights, and so such rights cannot be legitimized by their necessity for conflict-resolution in such cases.”

Here, Faraci is using the term 'dispute,' ambiguously.

Of course, one's disliking (or liking) of ANYTHING could create a dispute. The reference to the 'nonscarce good' is unnecessary and misleading.

More importantly, the terms 'dispute' and 'rivalrous' do not necessarily mean the same thing.

For instance, if two neighbors yelled at each other from their own lawns (about which side of toast they prefer to spread butter on), this might be characterized as a dispute, but this cannot be characterized as a rivalry of property. Neither neighbor attempted to invade nor threatened to invade the other's property. This kind of 'dispute' could arise and be dealt with without the introduction of property rights because the dispute was not over property.

Now, if the one neighbor was to trespass onto the other's lawn and attack the other, then there would be an introduction of property rights. There would an invasion of the lawn and the neighbor's physical body (his property).

“If my ability to profit from an idea interferes with yours, and this is a relevant use for determining whether a good is rivalrous, then not only does it turn out that ideas are often rivalrous, but it might well turn out that all goods (or at least all goods that anyone cares about) are, too.”

Again, Faraci is being misleading. Like the term 'dispute,' the term 'interference' does not necessarily mean the same as 'rivalrous.' Here, there is no interference where property is concerned. 'My ability to to profit from an idea,' whether it is the same or similar idea as yours, or something completely different, is not synonymous with the invasion of another's property.

This is as far as I got.. I'll try to finish up the rest of the paper later.. I can already tell the Faraci is attempting to append rights to people's thoughts.. this is a nonsensical, dangerous road to go down...

Re: Re: Re: Re: Re: Re: Re: Re: Re: @joe

Regarding disputes, I think his point is that just because there's a dispute doesn't mean it's a situation that requires property rights.

One interesting note is that he assumes, without addressing the point, that copyright is a property: '[The Constitution's copyright clause] is an example of a consequentialist or “non-individualistic” justification for property rights.' That kind of undermines this paper as a counterpoint to Mike's view since he doesn't consider copyright to be property.

Near the end I think he went off the rails with the hamburger machine. He seemed to misunderstand Kinsella, or maybe I misunderstood him.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: @joe

I just take issue with the fact that Faraci piggy-backs off his reference to 'dispute,' with a reference to 'interference' and uses that to justify that non scarce things are rivalrous. The only reason the term 'dispute' is used is to start the reader off onto the wrong path...

It's cracking me up that some are pretending like some theoretical model that some economists agree with but that many others don't somehow represents what's real, while the law--which actually in real life defines copyright--is somehow theoretical and not real. Copyright is a creature of statute, not a creature of some economic model.

The issue is that statutes themselves are theoretical constructs. There is no physicality behind statutes besides the paper it is written on. Because they are theoretical constructs, they can theoretically be changed. The debate is regarding which theoretical change is better, or none at all. You can argue that no change is better, but you cannot (logically) argue that it can't be changed, as you try to do repeatedly.

Laws can change.

You can (and even have!) make valid arguments for why it shouldn't change, but please don't just say 'It's the law, therefore you can't change it.' (aka, '...copyright as it actually exists...')

Now this DOES change if we're talking about a specific court case or somesuch, where your view is actually quite valid. HERE, though, we're talking about theoretical changes to the law. Because it says 'Fixing Copyright' up there in the title, we're talking about changes TO the existing law, not how things work under it.

Because we're talking about changes, we must construct a theoretical construct that would represent our changes, and compare it to the theoretical construct that represents current law. Then we talk about these two constructs, without giving any weight to 'it must be this way because it currently is this way'.

The words in Title 17 that have been enacted into law are not some theory. They have the force of law behind them. Those words actually control the scope of copyright rights. When the CTEA added 20 years to copyright terms, actual people's rights were actually affected. People actually got 20 more years of protection.

When Mike changes values in his theoretical models, nothing in the real world changes. His models are meaningless theories. If all economists and their theories were put on an island and nuked, copyright would be exactly the same since Title 17 has not been amended. Destroy all economists with nuclear bomb = no change to copyright. Change even one word in Title 17 = change copyright. Doesn't get any realer than the law on this one. Sorry.

When Mike changes values in his theoretical models, nothing in the real world changes. His models are meaningless theories. If all economists and their theories were put on an island and nuked, copyright would be exactly the same

I somewhat disagree. But I'm glad you made this post, as it shows how the law does not represent "reality" in any way, shape, or form.

If Mike - or, hell, all economists, ever - were totally wiped out of existence, society would still act according to economic principles. That's because economics is descriptive, not prescriptive. You have no choice but to obey them, just as you have no choice to spontainiously ignore the "theory" of gravity.

On the other hand, if all legislators, ever, were wiped off the face of the planet, then the laws that they created would no longer exist.

This means that legislators do not represent reality. If they didn't exist, reality would be just fine, and get along without obeying any of the rules that they created.

The same is absolutely not true of economics. Even if you nuked every single economist, people would still obey economic principles. They wouldn't be aware of it, and certainly wouldn't know which terminology to use, but the fact remains that every single person on the planet would be following economic principles.

This is because economics is a science. It is descriptive, not prescriptive. It bases its theories on empirical studies, and adjusts itself when new data comes in. Exactly like physics, cosmology, or any other empirical science.

The law is not any kind of science. It is prescriptive, not descriptive. It does not represent "reality," and doesn't even claim to try. It lays out rules about how legislators think reality ought to be, and then forces everyone in this nation to agree with them, at gunpoint.

That is not "reality." That is simply the will and/or ability to redefine "reality" for your own benefit.

Re: Re: Re: Re: Re: Re: @joe

I understand that in your theoretical economic models you choose to define property a certain way.

AJ, you have this entirely backwards. Economics is not "theory." Yes, there are theoretical aspects of economics, but economics *describes what is happening.* There are "models" that are a part of it, but we're not discussing theoretical models here. We're talking reality. So I don't know why you keep arguing that I'm talking about theory.

As others have pointed out, the artificial situation is the law. If you wiped out the laws, economics would still apply, but the laws would not.

Go ahead and run your models, but don't pretend that they are real. If every theoretical model of the economics of copyright were to disappear tomorrow, copyright would still remain exactly the same as it is today. Why? Because your models are just models. Copyright is a legal issue if there ever was one. Take away the legal parts and there is no copyright.

This is just stupid. Economics EXPLAINS what's happening. Law is what's artificial. We're not talking about "theoretical models" we're talking about explaining how the world works. If every "theoretical model of economics disappeared tomorrow" the *actual economics would still stand* because they're DESCRIPTIVE of what's happening.

However, if copyright laws disappeared tomorrow, the world wouldn't continue to pretend that there's copyright.

So, your entire premise is backwards. You don't understand economics and you somehow think that law represents a permanent reality, rather than a specific choice of a small group of lawmakers -- which frequently changes.

So your ploy to say "it's economics, so nothing else matters!" fails to address the fact that it's your economics that don't matter

That is like saying "your theory of gravity doesn't matter."

As an aside, I think it's strange in your other article you're citing Prof. Bell as saying that copyright is not subject to a Takings Clause claim. If you admit that it's property under the Due Process Clause, then why wouldn't it be property under the Takings Clause too? Do you really think the word property, which is used twice in the Fifth Amendment, means different things each time?

No, I'm saying Professor Bell may have convinced me that I was wrong in suggesting that copyright is property as defined under the due process clause.

The *economics* are 100% real. The models are attempts to describe the reality that exists. Models or not, the economics are 100% real.

And what about all of the other economists who think your secret models are wrong? You keep pretending like your models are the models. We both know that there are lots of other models that differ than yours put forth by other economists who think you're completely wrong. How can that be real?

I can only assume your approach to economics mirrors what I've seen of your approach to law: you work backwards, ignore the parts you don't like, and you let confirmation bias do the heavy lifting. Sorry, but since you don't ever produce these secret models, it's impossible to give them any weight at all. I've not gotten the impression that you're a math guy anyway, so I have trouble picturing you doing the complex math anyway.

The laws, however, are merely the decisions of a small group of lawmakers, and they change a lot over time. To argue that one is "real" and one is "not" is ignorance in the extreme.

The laws are real because the words in Title 17 actually define and control people's rights. Yes, of course the laws are the reflection of a plurality of views. Unlike your secret models that I'm sure only look at a few select things very narrowly, laws are the product of a broad consensus of views. Your models are completely meaningless and could disappear tomorrow and no one would know. Change even one word in Title 17 and people's rights could drastically change. Models = fake. Law = real. That you are pretending like your secret models are more real than the real world that they attempt to model is hilarious.

This is why we keep trying to explain to you that your focus on the legal definition is silly. The legal definition has NO IMPACT on economics, because the economics is WHAT IS HAPPENING.

No, I'm sure your secret models are based on all kinds of assumptions, and other people's models are based on other assumptions. I'm sure you think that copyright is strictly a utilitarian model, but the fact is that there are a lot of theories that combine to form the law of copyright, i.e., actual copyright. Economics look at the what is happening and try to make sense of it. It tries to predict what would happen to y if we change x. Why you pretend that these models are more real than the thing they are modeling is beyond me.

Sorry, but you aren't making much sense with this. I can only assume that this is part of a larger trend of yours that I notice where, since you don't like the law or reality, you pretend that something else (models that you made up in this case) is somehow more real than the real thing you don't like.

Re: Re: Re: Re: Re: Re: Re: @joe

AJ, you have this entirely backwards. Economics is not "theory." Yes, there are theoretical aspects of economics, but economics *describes what is happening.* There are "models" that are a part of it, but we're not discussing theoretical models here. We're talking reality. So I don't know why you keep arguing that I'm talking about theory.

Economists ATTEMPT to describe what is happening. Different economists think that different theories and models are important, and lots of economists think that lots of other economists are wrong. You make it sound economics = hard science. It's a social science.

As others have pointed out, the artificial situation is the law. If you wiped out the laws, economics would still apply, but the laws would not.

The law, not economics, actually define and control copyright. Your models are meaningless. Take away the law and there is no copyright.

This is just stupid. Economics EXPLAINS what's happening. Law is what's artificial. We're not talking about "theoretical models" we're talking about explaining how the world works. If every "theoretical model of economics disappeared tomorrow" the *actual economics would still stand* because they're DESCRIPTIVE of what's happening.

Economics ATTEMPTS to explain the real world. To say that these models are more real than the world that they attempt to explain is silly. And you know damn well that whatever secret models you're using, there are tons of other economists convinced that your models are shit. So stop pretending like there's certainty and consensus with your models. Your models attempt to describe what's real, but they are not real. And I'm sure you know that the models can never perfectly describe reality because the real world is not a maximized function and Pareto efficiency doesn't really exist.

However, if copyright laws disappeared tomorrow, the world wouldn't continue to pretend that there's copyright.

Right. Take away copyright law and there is no copyright. Take away all of the competing models from economists who all think their models are right while everyone else's models are wrong, and there would still be the fact of copyright.

So, your entire premise is backwards. You don't understand economics and you somehow think that law represents a permanent reality, rather than a specific choice of a small group of lawmakers -- which frequently changes.

Of course the law reflects the views of the legislator's that enacted it. Do you really think I don't understand this? All laws reflect a plurality of views. And those lawmakers aren't only concerned about efficiency, as you appear to be. There's more to copyright than efficiency. If your models don't reflect that, then they are incomplete. All models are incomplete though, so you're not alone.

That is like saying "your theory of gravity doesn't matter."

Good example (I was an astrophysics minor). There are lots of competing theories of what causes gravity. Nobody knows for sure what causes it, but we all know it exists.

No, I'm saying Professor Bell may have convinced me that I was wrong in suggesting that copyright is property as defined under the due process clause.

I look forward to seeing his arguments. Considering that the Supreme Court has had no trouble saying that other IP rights are property under the Takings Clause, I have my doubts that copyright would be any different.

Regardless, you didn't address my point about the difference between normative and descriptive arguments. I have noticed a trend on your part to latch onto what theories reach the results you think are correct. You don't seem to care whether that theory is descriptive or normative. Believe what you want, but it's sloppy. I'm reminded of when you claimed that Mossoff was intellectually dishonest because he was describing the actual law and not subscribing to normative arguments as you do. I do not know much about economics, but I know enough of you to be practically certain that your economics views are similarly biased and skewed.

Re: Re: Re: Re: Re: Re: Re: Re: @joe

Economists ATTEMPT to describe what is happening. Different economists think that different theories and models are important, and lots of economists think that lots of other economists are wrong. You make it sound economics = hard science. It's a social science.

Indeed, but the point remains: it is describing reality. And what we're talking about are not the models, but the reality. That you keep claiming we're discussing models is just you trying to distract from being shown to be wrong.

And you know damn well that whatever secret models you're using, there are tons of other economists convinced that your models are shit.

We're not talking about some secret model, AJ. We're talking about the basic underpinnings of ALL economics: the nature of supply and demand.

And those lawmakers aren't only concerned about efficiency, as you appear to be. There's more to copyright than efficiency. If your models don't reflect that, then they are incomplete. All models are incomplete though, so you're not alone.

Of course lawmakers aren't just concerned about efficiency. But once again, despite your willful attempt to ignore it, THIS POST is about whether or not copyright is about free market capitalism, and free market capitalism IS entirely about economic efficiency. So, for the sake of this discussion it IS what matters, despite your desire to discuss some meaningless tangent.

Right. Take away copyright law and there is no copyright. Take away all of the competing models from economists who all think their models are right while everyone else's models are wrong, and there would still be the fact of copyright.

Again, this is where your ignorance comes into play. WE'RE NOT TALKING MODELS.

Good example (I was an astrophysics minor). There are lots of competing theories of what causes gravity. Nobody knows for sure what causes it, but we all know it exists.

And, with that, I'm done. You've just proved the very point I'm trying to make. We all know what's happening. And any models are showing why it's happening. So, models or not (and, despite you're claims, we're not talking about any secret models), the economics applies. And copyright is not free market capitalism, because *economically speaking* content DOES NOT and CAN NOT act like rivalrous, excludable property.

So, just like gravity exists, and you and I and anyone else can calculate how fast something will fall, EVEN IF WE DON'T KNOW WHICH THEORY EXPLAINS WHY, we all know the basics of what copyright does, which is that it *artificially restricts supply*.

Whether or not that's *GOOD* or *BAD* is a DIFFERENT discussion than the one we're having here. The problem is that YOU keep wanting to turn this descriptive argument into a normative one. I don't think you do this because you're dishonest. Just that you're so focused on the law, you don't realize when we're having a discussion about economics and you feel the need to obnoxiously pull the conversation away from that which you're ignorant of to one where you can pretend to show off what you think is your brilliance.

Re: Re: Re: Re: Re: Re: Re: Re: @joe

Economists ATTEMPT to describe what is happening. Different economists think that different theories and models are important, and lots of economists think that lots of other economists are wrong. You make it sound economics = hard science. It's a social science.

And the law is no kind of science at all. It is not based on empirical evidence - unlike economics - and does not even attempt to explain how the real world works.

The law, not economics, actually define and control copyright. Your models are meaningless. Take away the law and there is no copyright.

You're essentially making the argument that copyright isn't "real." We all agree on that. It is one of the reasons copyright is not property - because property, unlike copyright, exists whether the government defines it or not.

But the economic rules (not "models") do, in fact, apply to copyright. Copyright is a government-granted monopoly, and there are economic rules about what happens when the government grants a monopoly. Those rules are not "meaningless," they're descriptive, and they're accurate.

And you know damn well that whatever secret models you're using, there are tons of other economists convinced that your models are shit.

The rules he is describing are not "secret." They are in every economics textbook out there, and can be looked up easily if you want. And they are universally agreed upon. There is not one economist on the planet that thinks copyright is not a monopoly, or that it is not enforced by the government. And there is not one economist on the planet that thinks government-granted monopolies are part of a free market.

There is, of course, a normative side to economics, as well as positive economics. Positive economics says, "if the government grants a monopoly to a producer, it introduces market inefficiencies." Normative economics says, "if the government grants a monopoly to a producer, it introduces market inefficiencies, and those market inefficiencies are bad." It is normative economics which drives economic policy - which, in turn, drives the law.

Economists disagree when it comes to normative economics (and they should). They do not disagree about positive economics. And what Mike is describing is positive economics - the same economics that is taught, every day, in colleges and universities.

In fact, I am taking microeconomics right now. A large part of our grade is from doing a group paper on a specific company. Our group chose Apple hardware.

Apple holds a monopoly on their hardware (iPhones, for example), whereas their competitors (like Android phone manufacturers) do not. That monopoly introduces market inefficiencies, which have specific consequences. Economics describes those consequences - and describes them accurately. Positive economic theory predicts that their products will be more expensive; that there will be fewer consumer choices; that these market inefficiencies can lead to shortages; and so forth. All of those economics laws turn out to be completely accurate. iPhones are far more expensive than Android phones; your choice of carrier is set by Apple; when Apple launches a new iPhone, they can't produce enough to meet the immediate demand; and so forth.

There is not a single economist that wouldn't predict these outcomes. They may disagree on the normative side - like whether Apple should change its monopoly policies as a business decision. But not a single one disagrees about the underlying positive economic theory. And not a single one would describe the market for iPhones as a free market.

Re: Any color you want so long as it is black.

It is rare a monopoly exists for very long because the market is constantly changing. Just because a monopoly exists today does not mean it will exist tomorrow. That does not mean there are no alternatives.

Re: The fanboy excuses.

In general, the class of companies that are "too big to fail" got there with government help. Those are businesses that would never have grown that large in the absence of gov't intervention. I'm talking about natural monopolies, companies that got they way they are because they were better than everyone else.

Re: I think we'll have economic fixes before we have legal fixes

Just saw this, so I will highlight it. Thought it was interesting that Google was on the list.

The 10 Companies with the Most Patent Power: "The list spans 17 categories, including aerospace, biotech, computers, electronics and medical equipment. The rankings, based on patents portfolios from 2011, are dominated by familiar global giants like IBM, Google and Qualcomm, which have built up large patent collections that they are racing to expand."

The monopoly discussion is going to start getting more focus

Krugman has been writing over the last few days about economics and job growth (or lack of it). He just posted this and there's a link in his article to a much bigger article on monopolies and the growing concentration within industries.

Re: Re: Re: Re: Re: Re: Re: Re: Re: @joe

Whether or not that's *GOOD* or *BAD* is a DIFFERENT discussion than the one we're having here. The problem is that YOU keep wanting to turn this descriptive argument into a normative one. I don't think you do this because you're dishonest. Just that you're so focused on the law, you don't realize when we're having a discussion about economics and you feel the need to obnoxiously pull the conversation away from that which you're ignorant of to one where you can pretend to show off what you think is your brilliance.

That's not it at all. I'm trying to discuss your broader argument that copyright is not property. I'm not only talking about the topic of this post. Sorry if that wasn't clear. We've only come up with two scenarios in a real person's life where it actually matters whether copyright is called "property," and that's in the context of the Takings Clause and the Due Process Clauses. Those clauses explicitly protect "property," so whether copyright is "property" under those clauses is dispositive of whether those clauses protect copyright. So there it literally matters to real people whether it's "property."

But in your models it doesn't matter what you call things--what matters is its nature. Some economists choose to believe that property requires the thing to be naturally excludable (as you do, and that's fine), and others have no problem recognizing that property is a broader concept than that and they don't define it so narrowly (and that's fine too). In the end, both sides of course recognize that it's not naturally excludable, and that's all that matters. Again, whatever label an economist uses for something doesn't matter, and it just doesn't matter in any real people's lives. Whether Mike calls it "property" in his models doesn't affect anyone's life in a concrete way.

That's not at all like with whether copyright is "property" as the Constitution uses that word. There, it really matters in real people's lives whether it's "property" or not. Let me add another scenario where it matters that I just saw yesterday: Someone in a will bequests "all my property, tangible and intangible to my wife." That testator happened to own copyright rights. Now do you think that bequest of "property" transferred ownership of the copyright rights to the wife? You bet, because copyrights are "property" that form part of a person's estate. So that's three examples of where it actually matters in a real person's life whether it's called "property." You still haven't even come up with one why it matters in your models what you call it.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: @joe

But in your models it doesn't matter what you call things--what matters is its nature.

First off, you are confusing positive economics (describing "what is") and normative economics (advocating "what ought to be"). What we are discussing here is positive economics that look at how copyright is functioning right here and now, not these "models" you keep bringing up for no reason. There is really no reason to create a model when looking at empirical facts and determining the economics of something that already exists.

And you are right, it doesn't matter how things are labeled, only their nature. In the same vein, it also doesn't matter whether you label something as "legal" or "illegal" either when looking at the economic impact of something. It may be illegal to trade product X, but if people ARE trading it, then it must also be included in an economic study since it impacts the economics of the situation.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: @joe

We've only come up with two scenarios in a real person's life where it actually matters whether copyright is called "property," and that's in the context of the Takings Clause and the Due Process Clauses.

No, that's simply not true at all. The whole point of this is that if you look at people's actions -- the reason why piracy is so prevalent, it's because people do not view copyright as property *intrinsically*. And that's because it's NOT *intrinsically*.

And that's the point you keep missing. Economics DOES NOT CARE what the law says. It only looks at the FUNDAMENTAL nature of the good for the purposes of how it is allocated.

Those clauses explicitly protect "property," so whether copyright is "property" under those clauses is dispositive of whether those clauses protect copyright. So there it literally matters to real people whether it's "property."

Except, that's simply not true. If it were true, having a copyrighted good go into the public domain at the end of its (ever extended) term would violate the takings clause. But no one thinks that. Similarly, if it were property, it would be subject to being taken by a spouse in a divorce, but it is generally considered not to be the case. There are lots of legal situations where copyright is not seen as property, contrary to your assertions.

Some economists choose to believe that property requires the thing to be naturally excludable (as you do, and that's fine), and others have no problem recognizing that property is a broader concept than that and they don't define it so narrowly (and that's fine too). In the end, both sides of course recognize that it's not naturally excludable, and that's all that matters.

And, now, after all this, you FINALLY see the point -- and you run right over it. There is NO question that copyright is not naturally excludable, and it is only later that the law serves to try to add an artificial exclusivity to it. But economics knows not of that, because it is only focused on the fundamental nature of the good.

Furthermore, the whole reason we had this discussion is BECAUSE people who claim that copyright is a part of free market capitalism are arguing 180 degrees against what you say we all agree on: that copyright is only excludable due to the law (i.e, an artificial excludability is added later).

Whether Mike calls it "property" in his models doesn't affect anyone's life in a concrete way.

Ugh. You're pretending I'm making a normative claim here, when all we're doing is making a descriptive one.

And, AGAIN, not "models." We're discussing REALITY, and if what I'm discussing didn't actually impact anyone's life in a concrete way then you wouldn't be here arguing this, because there wouldn't be any piracy.

So, no, your argument makes no sense. Clearly, the FACT (not opinion) that copyright is not the same as property, matters, because that's a big part of the reason why infringement is so widespread. All we're doing is explaining why.

Someone in a will bequests "all my property, tangible and intangible to my wife." That testator happened to own copyright rights. Now do you think that bequest of "property" transferred ownership of the copyright rights to the wife? You bet, because copyrights are "property" that form part of a person's estate.

Except, of course, in a divorce.

Again, as we noted at the beginning, which threw you into a tantrum: copyright has SOME property-like attributes and many non-copyright-like attributes.

Thanks for confirming all that while STILL not understanding the economics at play.

You still haven't even come up with one why it matters in your models what you call it.

Ha. Seriously, if you want to stop looking clueless, stop referring to "models." We're not discussing models. We're discussing reality. And, as noted, if it didn't matter in real life, there wouldn't be piracy. But there is. So that suggests that we're right.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: @joe

"We've only come up with two scenarios in a real person's life where it actually matters whether copyright is called "property," and that's in the context of the Takings Clause and the Due Process Clauses."

No, that's simply not true at all. The whole point of this is that if you look at people's actions -- the reason why piracy is so prevalent, it's because people do not view copyright as property *intrinsically*. And that's because it's NOT *intrinsically*.

Well keep in mind Mike, he said when it matters whether copyright is called property. I'm not sure he cares about how things actually are, as long as he is right about what to call them.

What is wrong with Capitalism Today?

Is Capitalism broken or what exactly has happened to this â€śfountain of money and growthâ€ť to draw such irritation among Wall Street financiers today?

I personally donâ€™t believe that capitalism is broken but it is a fact that capitalism requires freedom to work. It frankly is not and has never been designed to work in an environment dominated by market controls, regulations, artificial barriers to entry, monetary manipulation, and a myriad of other government interventions. To the extent that these things are present, I am afraid capitalism will appear broken. It is a wonder that what little capitalism that remains can still tug us along the path of progress as much as it does.http://tinyurl.com/l7zfb55

Re:

Free market capitalism stifles competition too. A company that's been in existence for generations can lower their prices enough to drive out newer competition thus creating a monopoly, then once that competition has been removed they can raise their prices to whatever they want.

Whether anyone likes it or not 100% free market capitalism is just as evil as 100% socialism.